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China and International Environmental

Liability
NEW HORIZONS IN ENVIRONMENTAL LAW

Series Editors: Kurt Deketelaere, Professor of Law and Director, Institute of


Environmental and Energy Law, University of Leuven, Belgium and Zen Makuch,
Department of Environmental Science and Technology, Imperial College, London,
UK
Environmental law is an increasingly important area of legal research. Given the
increasingly interdependent web of global society and the significant steps being
made towards environmental democracy in decision-making processes, there are
few people that are untouched by environmental law-making processes.
At the same time, environmental law is at a crossroads. The command and control
methodology that evolved in the 1960s and 1970s for air, land and water protection
may have reached the limit of its environmental protection achievements. New life
needs to be injected into our environmental protection regimes. This series seeks to
press forward the boundaries of environmental law through innovative research
into environmental protection standards, procedures, alternative instruments and
case law. Adopting a wide interpretation of environmental law, it includes contri-
butions from both leading and emerging European and international scholars.
Titles in the series include:

Whaling Diplomacy
Defining Issues in International Environmental Law
Alexander Gillespie

EU Climate Change Policy


The Challenge of New Regulatory Initiatives
Edited by Marjan Peeters and Kurt Deketelaere

Environmental Law in Development


Lessons from the Indonesian Experience
Edited by Michael Faure and Nicole Niessen

Finding Solutions for Environmental Conflicts


Power and Negotiation
Edward Christie

China and International Environmental Liability


Legal Remedies for Transboundary Pollution
Edited by Michael Faure and Song Ying
China and
International
Environmental
Liability
Legal Remedies for Transboundary Pollution

Edited by
Michael Faure
Professor of Comparative and International Environmental
Law, Maastricht University, and Professor of Comparative
Private Law and Economics, Erasmus University Rotterdam,
The Netherlands
and
Song Ying
Professor of International Law, Peking University, Peoples
Republic of China
NEW HORIZONS IN ENVIRONMENTAL LAW

Edward Elgar
Cheltenham, UK Northampton, MA, USA
Michael Faure and Song Ying 2008

All rights reserved. No part of this publication may be reproduced, stored in a


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mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.

Published by
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Edward Elgar Publishing, Inc.


William Pratt House
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A catalogue record for this book


is available from the British Library

Library of Congress Control Number: 2008932879

ISBN 978 1 84720 752 4

Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall
Contents
List of gures and tables xiv
List of contributors xv
List of abbreviations xvii

Chapter 1 Introduction and editorial preface 1


Michael Faure and Song Ying
1 Problem denition and reasons for this book 1
2 History and origins of this book 3
3 Methodology 3
3.1 Legal multi-disciplinary 3
3.2 Comparative approach 4
3.3 Multi-disciplinary 5
4 Topics 5
5 Framework of the project 6
6 Structure of this book 6
7 Contributors 7
8 Acknowledgements 8

PART I INTERNATIONAL ENVIRONMENTAL LAW


AND CONVENTIONS

Chapter 2 Cluster-litigation in cases of transboundary


environmental harm 11
Andr Nollkaemper
1 Introduction 11
2 Access 14
2.1 Domestic courts 14
2.2 Human rights courts 18
2.3 Forums for interstate claims 21
2.4 Non-judicial fora 22
3 Formal connections between the options 23
4 The separate responsibility of the parties 25
5 The limited scope of the applicable law 27
6 The limited scope of applicable secondary rules of responsibility 30

v
vi Contents

7 The complementary nature of the dierent options 32


8 Conclusions 35
References 35

Chapter 3 The role of international conventions in solving


transboundary pollution disputes 38
James Harrison
1 Introduction 38
2 Background to the dispute 39
3 Interpretation and application of the 1975 Statute 41
4 Cooperation and consultation in international environmental law 43
5 Provision of information and environmental impact assessment 47
6 Substantive pollution standards 50
7 Achieving an optimum and rational utilisation 54
8 The multi-faceted nature of international disputes 56
9 Conclusion 60
References 61

Chapter 4 Transboundary vessel-source marine pollution


international legal framework and its application to China 64
Wang Hui
1 Introduction 64
2 The international legal framework for transboundary vessel-
source pollution: an overview and evolution 66
2.1 Current legal framework: overview 66
2.2 Historical development 68
2.2.1 UNCLOS 68
2.2.1.1 Early attempts 68
2.2.1.2 1969 Intervention Convention 69
2.2.1.3 1982 UNCLOS 70
2.2.2 Prevention 71
2.2.2.1 OILPOL 1954 71
2.2.2.2 MARPOL 73/78 71
2.2.2.3 COLREGs 73
2.2.2.4 SOLAS 73
2.2.2.5 STCW Convention 74
2.2.3 Response: OPRC 74
2.2.4 Liability 75
2.2.4.1 CLC/Fund 75
2.2.4.2 HNS Convention 76
2.2.4.3 Bunker Convention 77
2.3 Evaluation 77
Contents vii

3 China 78
3.1 Introduction 78
3.2 Historical development of Chinese law on transboundary
vessel-source marine pollution 79
3.3 Analysis of Chinese laws on transboundary vessel-source
marine pollution 82
4 Analysis of competences to remedy transboundary vessel-source
marine pollution 84
4.1 Overview 84
4.2 Flag state jurisdiction 85
4.2.1 Prescriptive jurisdiction 85
4.2.2 Enforcement jurisdiction 87
4.2.3 Registration of a ship 88
4.2.4 Evaluation 89
4.3 Coastal state jurisdiction 90
4.3.1 Overview 90
4.3.2 Internal waters and ports 91
4.3.3 Territorial sea 92
4.3.4 EEZ 93
4.3.5 High seas 95
4.3.6 Evaluation 95
4.4 Port state jurisdiction 97
4.4.1 UNCLOS 97
4.4.2 MOUs 99
4.4.3 Evaluation 99
4.5 Comparative summary 100
5 Concluding remarks 101
References 104

Chapter 5 ILC proposal on the role of origin state in


transboundary damage 107
Gou Haibo
1 Introduction 107
2 Loss allocation scheme proposed by ILC 107
3 Compromise proposal on the role of origin state 110
3.1 Sources of international law on the role of state 110
3.2 The work of ILC 113
4 Weaker proposal on the role of multinational corporations 116
4.1 International law on the role of multinational corporations 116
4.2 The work of the ILC 119
5 Proposal absent regarding the role of home state 120
5.1 International law about the role of the home state 121
viii Contents

5.2 The work of ILC 123


6 Conclusion 125
References 125

PART II NATIONAL ENVIRONMENTAL LAW IN A


TRANSBOUNDARY LEGAL CONTEXT

Chapter 6 Applying national liability law to transboundary


pollution: some lessons from Europe and the United States 129
Michael Faure and Gerrit Betlem
1 Introduction 129
2 International law in a transboundary liability case 133
2.1 General: monism versus dualism 133
2.2 The Chernobyl case: district court of Bonn 134
2.3 MDPA case: direct application of international law 135
2.4 Lessons 137
3 Forum 138
3.1 Importance 138
3.2 Brussels Convention 139
3.3 Council Regulation 44/2001 140
4 Applicable law 146
4.1 Dutch law 146
4.2 EU law: Rome II update 149
5 Actors 151
5.1 Individual victims as claimants 151
5.2 NGOs as claimants 152
5.3 Environmental liability directive and public
authorities as claimants 154
5.4 Public authorities as defendants: immunity? 157
6 Wrongfulness 158
6.1 Strict liability or negligence? 158
6.2 Violating a regulatory norm or a duty of care 160
6.3 Breach of foreign law 161
6.4 Cases 161
6.5 Environmental liability directive 163
7 Applicable remedies 164
7.1 Article 6:184 Dutch Civil Code: costs of preventive
measures 165
7.1.1 Borcea 167
7.1.2 International conventions 169
7.1.3 Other recoverable costs: detection costs 171
7.2 Cross-border injunctions 173
Contents ix

7.3 US citizen suits: the Pakootas case 175


7.3.1 Action by the US Environmental Protection Agency
(EPA) 175
7.3.2 Judgment 176
7.3.3 Extraterritoriality or not? 177
7.3.4 Would a European Pakootas be possible? 179
7.3.5 Choice of law 180
8 Eect of a (foreign) licence 181
9 Recognition and enforcement 184
10 Conclusions 186
References 187

Chapter 7 The joint governance of transboundary river basins:


some observations on the role of law 192
Marjan Peeters
1 Introduction 192
2 Water pollution and the broad concept of
water management 193
2.1 From a single issue oriented approach to a holistic
approach 193
2.2 The dependent position of the victim state: how to
approach the pollutant state? 195
2.3 Regime approach 198
2.4 The diculties surrounding standard setting 200
2.5 A less legalistic approach seems (at least in some cases)
more benecial 201
3 A focus on two international river commissions 203
3.1 The International Meuse Commission 203
3.1.1 Introduction 203
3.1.2 The Treaty 203
3.1.3 The Commission 206
3.1.4 Participation 208
3.1.5 Dispute settlement 208
3.1.6 Conclusion 208
3.2 The Commission for the Protection of the Rhine 210
3.2.1 Introduction 210
3.2.2 Treaty 211
3.2.3 The International Commission for the
Protection of the Rhine 212
3.2.4 Conclusion 214
4 Some surrounding legal developments: what has been agreed
at the international and EC level? 215
x Contents

4.1 International level 215


4.2 1992 UN ECE Convention on the Protection and Use of
Transboundary Watercourses and International Lakes
(Helsinki Convention) 216
4.3 1992 Paris Convention on the Protection of the Marine
Environment of the North-East Atlantic 216
4.4 EC Framework Directive on Water Quality 217
4.5 Overlapping legal regimes 220
5 Concluding observations 221
5.1 The common approach of a managerial and not so
much legalistic governance style 221
5.2 Holistic problem solving, even including trade-os and
issue-linking 222
5.3 Towards sophisticated and accountable river-regimes 223
References 223

Chapter 8 A new look at environmental impact assessments:


using customary law to prevent domestic and
transboundary environmental damage 225
Jack Jacobs
1 Introduction 225
2 Overview and history of EIA 226
3 Obligation to conduct an EIA 229
3.1 National EIA legislation 229
3.2 Treaty obligation 230
3.3 International environmental law principles 235
3.4 Customary environmental law 238
4 Proving an EIA as customary environmental law 240
5 Implications of considering an EIA as customary law 241
6 Enforcement of customary EIA obligation 242
7 Conclusion 247
References 251

Chapter 9 Transboundary environmental crimes: an analysis of


Chinese and European law 253
Thomas Richter
1 Introduction 253
2 European law 254
2.1 Braiding between national and international law 254
2.1.1 Council of Europe level 254
2.1.2 EU level 255
2.1.2.1 Harmonisation of criminal law 255
Contents xi

2.1.2.2 European arrest warrant 257


2.1.3 Interim result 257
2.1.4 National level Germany 258
3 Chinese law 262
3.1 Economic rise 262
3.2 Criminal law 262
3.3 Transboundary damages 263
3.3.1 Atmospheric, water or radioactive pollution 263
3.3.1.1 General outline 263
3.3.1.2 Songhua River accident of November
2005 265
3.3.2 Solid waste import and export 266
3.3.3 Tracking in endangered species 267
4 Summary/conclusion 268
References 269

PART III THE SONGHUA RIVER POLLUTION CASE

Chapter 10 Reections from the transboundary pollution of


Songhua River 273
Wang Jin, Huang Chiachen and Yan Houfu
1 Introduction 273
2 Four kinds of potential disputes 276
2.1 The Russian Government v the Chinese Government 276
2.2 The Russian Government v PetroChina 281
2.3 Russian victims v the Chinese Government 282
2.4 Russian victims v PetroChina 283
3 Suggestions 285
3.1 Promotion of the establishment of international
cooperation with China 285
3.2 Establishment of international contingency plan 287
3.3 Establishment of nancial contingency plan for
compensation of transboundary pollution 287
3.4 Provision of equal treatment to non-citizens 288
4 Actual actions taken by China 289
5 Conclusion 290
References 290

Chapter 11 Pondering over the incident of Songhua River


pollution from the perspective of environmental law 291
Wang Canfa, Yu Wen-xuan, Li Dan and Li Jun-hong
1 Introduction 291
xii Contents

2 Problems of Chinas current environmental legislation through


analysis of the Songhua River pollution incident 292
2.1 The guiding legislation ideology is in deviation
from the basic requirements of environmental protection 292
2.2 Some important environmental legal systems are
badly in need of establishment 294
2.3 Some supplementary systems are needed in the
current environmental legal system 296
2.3.1 Environmental counter-emergency system 296
2.3.2 System for the settlement of administrative
transregional environmental disputes 298
2.3.3 Transboundary environmental disputes settlement
system 299
2.4 Relevant regulations need perfection 300
3 Ways to improve Chinas environmental legislation 301
3.1 Change the ideology and establish the basic principle
of environmental legislation: social and economic
development should be in harmony with
environmental protection 301
3.1.1 Precautionary principle should be carried out
completely in the environmental legislation 302
3.1.2 EIA on strategy, policy, law and plan should
be given importance 303
3.1.3 It is indispensable to improve the feasibility of
environmental legislation and pay more
attention to law enforcement 303
3.2 Establish and perfect important environmental legal
system 304
3.2.1 System for compulsory environmental liability
insurance 304
3.2.2 Fund for environmental damage compensation 305
3.2.3 Environmental counter-emergency system 306
3.2.4 System for the settlement of administrative
transregional environmental disputes 307
3.2.5 System for the settlement of transboundary
environmental disputes 308
3.3 Revise relevant laws and regulations 308
4 The important step to improve Chinas environmental
legislation the establishment of law of environmental
damage compensation 309
References 313
Contents xiii

Chapter 12 International legal aspect of the Songhua


River incident 315
Song Ying
1 Introduction 315
2 Songhua River spill and subsequent development 315
3 International legal issues of the incident 317
3.1 Nature of the incident 317
3.2 Applicable international principles and rules? 318
3.2.1 International treaties 319
3.2.2 International customs 320
3.3 Responsibility and liability issues 321
3.3.1 State responsibility 321
3.3.2 Liability 327
3.3.2.1 Subject of possible compensation 327
3.3.2.2 Scope of possible compensation 328
4 Conclusion future perspectives 330
References 331

PART IV COMPARATIVE CONCLUSIONS

Chapter 13 Comparative and concluding remarks 335


Michael Faure and Song Ying
1 International law 335
2 Inuence of international law on national law 337
3 Applying domestic law to transboundary pollution 339
4 Multifaceted litigation 340
5 Actors 342
6 Dispute settlement 343
7 China 344
8 Outlook 345

Index 349
Figures and tables
FIGURES

8.1 Domestic customary law 239


8.2 International customary law 239
8.3 Universial customary law 241
9.1 Pollution permitted according to environmental
regulations of Country A 260
9.2 Unlawful pollution according to environmental
regulations of Country A 260
9.3 Ambient sea water quality 264

TABLES

4.1 International legal framework for transboundary vessel-


source marine pollution 69
8A.1 List of national EIA legislation and year enacted 248
8A.2 List of treaties and declarations containing EIA provisions 249

xiv
Contributors
Betlem, Gerrit, Professor of European Union Law, School of Law,
University of Southampton, United Kingdom
Faure, Michael, Professor of Comparative and International
Environmental Law, METRO, Maastricht University, the Netherlands
Gou, Haibo, Department of Treaty and Law, Ministry of Foreign Aairs
of China, Peoples Republic of China
Harrison, James, Teaching Fellow in International Law, School of Law,
University of Edinburgh, United Kingdom
Huang, Chiachen, Ph.D Candidate of Environmental Law, Law School,
Peking University, Peoples Republic of China
Jacobs, Jack, Lecturer of Environmental Law, Arava Institute for
Environmental Studies, Ketura, Israel
Li, Dan, Environment Protection Law Research Institute of China
University of Political Science and Law, Beijing, Peoples Republic of
China
Li, Jun-hong, Environment Protection Law Research Institute of China
University of Political Science and Law, Beijing, Peoples Republic of
China
Nollkaemper, Andr, Professor of Public International Law and Director
of the Amsterdam Center of International Law at the University of
Amsterdam, the Netherlands
Peeters, Marjan, Professor of Environmental Policy and Law, in particular
climate change issues, METRO, Maastricht University, the Netherlands
Richter, Thomas, lawyer and consultant for Chinese Law and Politics,
Freiburg, Germany
Song, Ying, Professor of International Law, School of Law, Peking
University, Beijing, Peoples Republic of China
Wang, Canfa, Environment Protection Law Research Institute of China
University of Political Science and Law, Beijing, Peoples Republic of
China
Wang, Hui, Catholic University of Leuven, Leuven, Belgium
Wang, Jin, Professor of Environmental Law, Peking University, Peoples
Republic of China
Yan, Houfu, Ph.D Candidate of Environmental Law, Law School, Peking
University, Peoples Republic of China

xv
xvi Contributors

Yu, Wen-xuan, Environment Protection Law Research Institute of China


University of Political Science and Law, Beijing, Peoples Republic of
China
Abbreviations
AJIL American Journal of International Law
ASEAN Association of South-East Asian Nations

CAO Oce of Compliance Advisor/Ombudsman


CARU Comisin Administradora del Ri Uruguay
CBD Convention on Biological Diversity
CC Civil Code
CDEM Conservation and Environmental Management
Division
CERCLA Comprehensive Environmental Response,
Compensation, and Liability Act
CITES Convention on International Trade in
Endangered Species of Fauna and Flora
CLC International Convention on Civil Liability for
Oil Pollution Damage
CNPC China National Petroleum Corporation
COLREGs Convention on the International Regulations for
Preventing Collisions at Sea
CPL Chinese Penal Law

DDT Dichlorodiphenyltrichloroethane

EAW European Arrest Warrant


EC European Community
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EC Treaty Treaty Establishing the European Community
EDCS Environmental Damage Compensation System
EEZ Exclusive Economic Zones
EIA Environmental Impact Assessment
EIS Environmental Impact Statement
ELD Environmental Liability Directive
ELIS Environmental Liability Insurance System
EPA Environmental Protection Agency

xvii
xviii Abbreviations

EU European Union
EWHC High Court of England and Wales

FOC Flag of Convenience


FSI Flag State Implementation

GATT General Agreement on Taris and Trade


GATS General Agreement on Trade in Services
GCEPNPI General Counter Emergency Plan for National
Public Incidents
GDP Gross Domestic Product
GPC German Penal Code

HNS International Convention on Liability and


Compensation for Damage in Connection with
the Carriage of Hazardous and Noxious
Substances by Sea

IACHR Inter American Convention on Human Rights


IAComHR Inter-American Commission on Human Rights
IACtHR Inter American Court of Human Rights
ICJ International Court of Justice
ICPR International Commission for the Protection of
the Rhine
ICSID International Centre for Settlement of Investment
Disputes
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
IMC International Meuse Commission
IMO International Maritime Organization
IOPC Fund International Oil Pollution Compensation Fund
ISM Code International Safety Management Code
ITLOS International Tribunal for the Law of the Sea

MARPOL International Convention for the Prevention of


Pollution from Ships
MEA Multilateral Environmental Agreement
MEPC Marine Environment Protection Committee
MEPL Marine Environmental Protection Law
MERCOSUR Mercado Comn del Sur
Abbreviations xix

METRO Maastricht European Institute for Transnational


Legal Research
MOU Memorandum of Understanding
MSC Maritime Safety Committee
MSER Mechanism for Socializing Environmental Risks

NEPA National Environmental Policy Act


NGO Non-Governmental Organization

OECD Organization for Economic Co-operation and


Development
OILPOL International Convention for the Prevention of
Pollution of the Sea by Oil
OSPAR Convention Convention for the Protection of the Marine
Environment of the North-East Atlantic
OPRC International Convention on Oil Pollution
Preparedness, Response and Co-operation

PAH Polycyclic Aromatic Hydrocarbon


PCB Polychlorinated Biphenyl
PCIJ Permanent Court of International Justice
POPs Convention Convention on Persistent Organic Pollutants

SAR International Convention on Maritime Search


and Rescue
SEA Protocol Protocol on Strategic Environmental Assessment
SEPA State Environment Protection Agency
SOLAS International Convention for the Safety of Life at
Sea
STCW Convention International Convention on Standards of
Training, Certication and Watchkeeping for
Seafarers

TRIPS Agreement on Trade Related Aspects of


Intellectual Property Rights

UN United Nations
UNCLOS United Nations Convention on the Law of the
Sea
UNEP United Nations Environment Programme
UNTS United Nations Treaty Series
xx Abbreviations

WCED World Commission on Environment and


Development
WFD Water Framework Directive
WPPCL Water Pollution Prevention and Control Law
WTO World Trade Organization
WWF World Wildlife Fund
1. Introduction and editorial preface
Michael Faure and Song Ying

1 PROBLEM DEFINITION AND REASONS FOR


THIS BOOK

One of the unpleasant side-eects of globalization, economic development


and growth is that not only do benets cross national borders, but also prob-
lems like environmental pollution. This phenomenon has been studied from
various disciplines and more particularly in international law. By the 1930s
cases between states determined the extent to which polluting states could
be held under international law to compensate for damage caused to the
victim state. Recent disputes (e.g. between Argentina and Uruguay) show
that although international environmental law has gone through a long
development, there are still many uncertainties that need to be claried.
In addition, transboundary environmental legal disputes are not only
remedied through instruments of international law. Increasingly, victims in
national states also seek to apply their domestic legislation to transbound-
ary environmental pollution cases. This raises a number of interesting ques-
tions, inter alia with respect to the competent forum, but also with respect
to the applicable liability rule and the available remedies.
To date the literature on international law and private law has to a large
extent developed into separate doctrines, with international lawyers attempt-
ing to identify the scope of state responsibility under international law and
private lawyers attempting to explain to what extent victims could get com-
pensation for transboundary pollution using the techniques of private law.
However, it is becoming clear that these two domains are not totally sepa-
rate. We increasingly notice that in domestic cases dealing with transbound-
ary issues the question also arises to what extent treaties or other
international norms could furnish a source of liability. Moreover, in some
specic cases treaties explicitly establish liability rules (e.g. in the case of
nuclear liability or oil pollution). The rst goal of this book is to therefore
examine the remedies available for transboundary environmental pollution
in an integrated manner. Thereby we will not only focus on remedies avail-
able in international law (conventions, customary international law), but we
will integrate these in remedies available at the domestic level. The latter not

1
2 Introduction and editorial preface

only concern remedies of private law, but also of administrative and eventu-
ally criminal law. Indeed, the importance for potential victims of, for
example, a new transboundary industrial project having to possibly intervene
in the administrative procedure in a neighbouring country will be determined
by national administrative law and should therefore be included in the dis-
cussion. Moreover, some prosecutors in victim states may wish to apply their
national criminal law to pollution cases even if the origin of the pollution is
from a foreign state, but the consequences are felt in the victim state. One
goal of this book is to address the variety of all of these legal remedies avail-
able to transboundary environmental pollution in an integrated manner.
In addition to addressing these legal remedies for transboundary pollu-
tion, an important goal is moreover (as our main title suggests) to analyse
how all of these legal rules can apply to the specic case of China. The
reason for focusing on China may be obvious. Increasingly, both scholars
and politicians are aware of the fact that the spectacular economic devel-
opment of China comes at a high cost as far as environmental pollution is
concerned. Such concerns are gradually becoming more prominent at the
Chinese domestic level. However, it is also obvious that pollution caused as
a result of industrial activities within China has consequences which are
unfortunately not conned within the Chinese borders. One result of this
economic development may therefore be that China can increasingly be
confronted with neighbouring states arguing that they suer harm as a
result of environmental pollution coming from China. Recently it was even
held that atmospheric pollution taking place in the state of California in
the United States could allegedly have its source in industrial activities in
China. In all of these cases the same questions arise, more particularly,
whether either China or individual polluters within China can be held liable
for this type of transboundary pollution. It is interesting to focus on this
specic case of China since it is well known that the Chinese industry and
economy have developed at a higher speed than environmental protection.
Domestic environmental law in China still needs to be developed to be
able to follow the rapid evolutions of economic development. The question
therefore arises as to what extent some limitations of domestic environ-
mental law in China may also have their consequences when transbound-
ary environmental pollution occurs. A recent highly debated case also
showed that this question is far from hypothetical. As a result of an inci-
dent in the north of China a large part of the Songhua River was polluted,
leading to a potential pollution in Russia. This case has been taken as a test
for many scholars to examine to what extent Chinese law is able to deal ade-
quately with such a case of transboundary pollution, though our three
Chinese colleagues may not necessarily agree with each other on whether it
has caused serious transboundary water pollution to Russia.
Introduction and editorial preface 3

In summary, this book aims, on the one hand, to provide an integrated


approach to the legal remedies available for transboundary pollution and,
on the other hand, to examine the relevance of this transboundary envir-
onmental liability for the specic case of China.

2 HISTORY AND ORIGINS OF THIS BOOK

This book originates from a long-standing cooperation between various


Chinese and European institutions that led to the realization of a research
project which was at the origin of this book. Within the framework of the EU-
China European Studies Centres Programme (ESCP), the European Studies
Center of Peking University (PKU) cooperates with several universities in
Europe (Dublin, Erlangen, London School of Economics and Maastricht).
As part of this project, an international conference took place in Beijing
on 1921 May 2007 under the title Europe: from nation states to a state of
nations. One panel within this conference was specically devoted to envir-
onmental issues and was coordinated by the editors of this book, who also
have a long-standing relationship of cooperation. During the conference
many papers were presented by various academics and some practitioners.
This book is therefore largely the result of this cooperation between Peking
University and, more particularly, Maastricht University as far as the area
of environmental law is concerned.

3 METHODOLOGY
As we have already indicated above, various approaches have been followed
in the dierent chapters in this book. We believe that these various
approaches are also necessary to answer the complicated questions related
to transboundary environmental pollution.

3.1 Legal multi-disciplinary

A legal multi-disciplinary approach has been followed by many authors


since the problem of providing legal remedies to transboundary pollution
is so important that various legal disciplines should be used to provide a
full picture. We already indicated that we see one of the goals of this book
is to provide an integrated approach, using various disciplines to identify
how transboundary environmental pollution can be remedied from various
angles. The following insights and legal disciplines have therefore been
used, combined and integrated:
4 Introduction and editorial preface

Human Rights: as is made clear in various contributions to this


book, in some cases it is argued that transboundary environmental
pollution violates fundamental human rights which is the responsi-
bility of the violating state. Hence the question arises to what extent
the human rights approach to environmental pollution can also
remedy transboundary environmental pollution.
International law: clearly the rst type of remedy one could think of
in the case of transboundary pollution is the application of princi-
ples of international law, potentially leading to state responsibility. In
this respect attention should not only be based on general principles
of transboundary liability, but also on the importance of customary
international law and, of course, on the role of treaties.
Administrative law: in some cases (national) administrative law can
be applied usefully by victims against transboundary environmental
pollution. This may be the case when victims can intervene in admin-
istrative procedures abroad leading, for example, to the licensing of
a harmful activity. Also the requirement of an environmental impact
assessment can substantially improve the rights of victims of trans-
boundary pollution.
Private law: a crucial issue is of course to what extent (national)
private law can be applied in a transboundary pollution context.
Specic questions in this respect not only arise as far as the applica-
tion of liability rules is concerned (the applicable standard, causation
issues etc), but, more particularly, relating to the applicable law and
the issue of jurisdiction. The question in this respect arises, more par-
ticularly, on whether victims have the right to bring a suit against
foreign polluters in their home state.
Criminal law: criminal law may in some cases be applied to trans-
boundary environmental pollution which comes from a neighbour-
ing country. In that respect the question arises on whether the
criminal law merely punishes a harmful emission (which took place
abroad) or also the harmful result (pollution) which may take place
in the home state. When the wrongful emission is criminalized the
question also arises on whether following the foreign licence could be
an excuse in criminal law.

3.2 Comparative approach

This book places much emphasis on legal comparison. We have clearly indi-
cated that relevant international conventions will be examined, but also all
of the above-mentioned aspects will be approached from a comparative
perspective. The comparative perspective consists not only of looking at all
Introduction and editorial preface 5

dierent aspects of legal remedies (international law, public environmental


law) but also by comparing solutions by entirely dierent legal systems
(Israel, various European states, the European Union, the United States
and China).

3.3 Multi-disciplinary

Even though the main focus of this book is on how the law can be shaped
in order to provide optimal remedies for transboundary pollution, various
other disciplines can also be useful in contributing to answer that question.
For example economists have indicated that transboundary environmental
pollution can be considered as an externality (external eect). Thus some
chapters in this book will use economic analysis to answer the question
whether (international) legal remedies can be considered an eective instru-
ment to internalize the externality caused by transboundary pollution. In
addition, it may be clear that transboundary pollution sometimes involves
stronger polluter states inicting harm upon weaker victim states. Thus
some insights from political science will also be used, for example to predict
under what circumstances bargaining between states or between the parties
involved may result in fruitful solutions.

4 TOPICS

The topics chosen in this book all relate to the central question, being how
legal remedies can remedy transboundary environmental pollution. The
book thus consists of a series of chapters that each in its own way tries to
answer that question. However, since a dierence can be made between
remedies at the international level and at the national level, the chapters
have been arranged in three parts.
The rst set of chapters (Part I) deals with the role of international envir-
onmental law and, more particularly, conventions in remedying trans-
boundary environmental law. The contributions in this part on the one
hand discuss the relevance of applicable bilateral and multilateral conven-
tions, but also discuss principles of customary international law and their
application to transboundary environmental pollution.
The second set of chapters (Part II) deals with the application of national
law to transboundary pollution. This concerns on the one hand the appli-
cation of national private (liability) law whereby specic questions are
addressed relating inter alia to the applicable law that the judge will use in
a transboundary pollution case and to the question whether NGOs could
also bring a suit. In addition, attention is also paid to the application
6 Introduction and editorial preface

of environmental impact assessments in a transboundary way and to the


transboundary application of the criminal law.
Part III deals with some highly interesting case studies, more particularly
discussing a pollution incident that occurred in the Songhua River in the
north of China in 2005. Three Chinese authors discuss, each from their
specic expertise (Chinese environmental law, private law and international
law) the consequences of this spectacular case from a Chinese legal per-
spective. They not only critically discuss whether current Chinese law could
provide ecient remedies for the pollution caused to the Songhua River to
victims in Russia, but they also indicate some deciencies and formulate
proposals for legislative reforms.

5 FRAMEWORK OF THE PROJECT

The project which inspired this book was based on cooperation between
the Maastricht European Institute for Transnational Legal Research
(METRO), the research institute of the Faculty of Law of Maastricht
University and the Centre for European Studies of Peking University.
Many of the European researchers engaged in the project participate
within the Ius Commune Research School. The Ius Commune Research
School is a collaboration between the Universities of Amsterdam,
Leuven, Maastricht and Utrecht and focuses on law in integration
processes.
The chapters contained in this book are a selection of the papers that
were presented at the China-Europe conference which was held in May
2007 in Beijing. Afterwards some authors were invited to deal with specic
issues as separate contributions to the book.

6 STRUCTURE OF THIS BOOK

It has already been stated above that the book is divided into three main
parts. Part I deals with international law and conventions. It contains a con-
tribution by Andr Nollkaemper on cluster litigation in cases of trans-
boundary environmental harm (Chapter 2). The third chapter is by James
Harrison and deals with the role of international conventions in solving
transboundary pollution disputes. The fourth chapter is by Wang Hui
dealing with transboundary vessel-source marine pollution the inter-
national legal framework and its application to China. Chapter 5 by Gou
Haibo deals with the ILC proposal on the role of origin state in trans-
boundary damage.
Introduction and editorial preface 7

Part II deals with the application of national environmental law in a


transboundary legal context. Chapter 6, written by Michael Faure and
Gerrit Betlem, deals with the application of national liability law to trans-
boundary pollution and addresses some lessons from Europe and the
United States. Chapter 7 written by Marjan Peeters deals with the joint gov-
ernance of transboundary river basins. Chapter 8, by Jack Jacobs addresses
a new look at environmental impact assessments: using customary law to
prevent domestic and transboundary environmental damage. Thomas
Richter addresses transboundary environmental crimes an analysis of
Chinese and European law in chapter 9.
Part III contains contributions dealing with the Songhua Jiang River
pollution case. Chapter 10 by Wang Jin, Huang Chiachen and Yan Houfu
deals with reections from the transboundary pollution of the Songhua
River thereby mainly addressing the incident from the perspective of envir-
onmental law. Chapter 11 by Wang Canfa, Yu Wenxuan, Ll Dan and
Li Junhong discusses the incidents of the Songhua River pollution from the
perspective of private law, and in Chapter 12 Song Ying analyses the same
incident from the perspective of international law.
Part IV consisting solely of Chapter 13 contains a set of comparative and
concluding remarks by the editors.

7 CONTRIBUTORS

The contributors to this book come, as was made clear, from various uni-
versities in Europe, the United States and China. Michael Faure and
Marjan Peeters are from Maastricht University. Wang Hui works at
the Catholic University of Leuven. James Harrison is aliated to
the University of Edinburgh. Gerrit Betlem works at the University
of Southampton. Andr Nollkaemper is from the University of
Amsterdam. Thomas Richter is a lawyer and an independent consultant
from Freiburg in Breisgau (Germany) on matters of Chinese law and
policy. Jack Jacobs works for the Arava Institute for Environmental
Studies in Israel.
The Chinese contributors are from Peking University (Song Ying, Wang
Jin, Huang Chiachen and Yan Houfu) and from the Chinese University of
Political Science and Law (Wang Canfa, Yu Wenxuan, Li Dan and
Li Junhong). Gou Haibo is aliated with the Ministry of Foreign Aairs
in Beijing.
A complete list of the contributors and their aliation is provided in the
list of contributors on p. ix.
8 Introduction and editorial preface

8 ACKNOWLEDGEMENTS

As editors of this book we are grateful to many people who made this
project possible. In this respect we refer both to the conference held in May
2007 in Beijing and to the publication of the book. First of all we would
like to thank the European Community and more particularly the
European Studies Centre of Peking University for nancial support for the
organization of the conference. We also owe thanks to the administrative
centre of the Maastricht European Institute for Transnational Legal
Research (METRO) and especially to Silvia Workum, Chantal Kuijpers
and Marina Jodogne for editorial assistance in the preparation of the pub-
lication of this book. Finally, we are truly grateful for the excellent and pro-
fessional cooperation with the people working at Edward Elgar, our
publisher, for all their assistance in the publication of this book.
The texts were nalized in October 2007, and for that reason develop-
ments after that date have not been included in this book.

Michael Faure Maastricht/Beijing, December 2007


Song Ying
PART I

International Environmental Law and


Conventions
2. Cluster-litigation in cases of
transboundary environmental harm
Andr Nollkaemper

1 INTRODUCTION

In this chapter I will discuss the phenomenon of cluster-litigation in cases


of transboundary environmental harm. With the term cluster-litigation, I
refer to a parallel or serial litigation of overlapping or closely related claims
before multiple courts.1
The phenomenon of cluster-litigation in cases of transboundary envi-
ronmental harm is a consequence of the fact that, in many such cases,
private claimants who are injured by environmental harm originating from
across the border may use multiple options to present a claim for repara-
tion.2 They may bring a claim against private parties that caused such
harm, for instance an industrial facility emitting waste water. They may
also bring claims against foreign states under whose jurisdiction such harm
originated and that have failed to take appropriate measures to prevent the
harm. In other cases, private injured parties may rely on the state of their
nationality to bring a claim against the wrongdoing state and to seek repa-
ration on behalf of their nationals. They may also consider claims against
international organizations that support (for instance by providing loans)
activities resulting in transboundary environmental harm.
A good illustration of cluster-litigation in response to transboundary
environmental harm is the range of cases brought in connection with the
planned construction of pulp mills in Uruguay that may lead to pollution

1 Romano (2007b, p. 796) uses the term in reference to procedures at

international level. This article uses the concept in a broader meaning, also
encompassing domestic claims.
2 The term reparation is understood here in its meaning as a concept of

international law, encompassing restitution, compensation and satisfaction, either


singly or in combination. Articles on the Responsibility of States for Internationally
Wrongful Acts, Report of the International Law Commission on Work of its Fifty-
third Session, UN GAOR, 56th Sess., Supp. No. 10 at art. 33, para. 2, UN Doc.
A/56/10 (2001), reprinted in Crawford (2002). Though the Articles do not apply to

11
12 International environmental law and conventions

of the River Uruguay.3 Argentina initiated proceedings against Uruguay in


the International Court of Justice primarily to protect its own rights, but
with the potential eect of protecting the interests of persons living in
Argentina.4 A group of (potentially) aected individuals presented a claim
with the Inter-American Commission on Human Rights.5 Induced by
claims of NGOs, an Argentine Federal Prosecutor initiated a criminal
investigation into alleged environmental crimes by executives of the
Spanish and Finnish companies involved in the operation.6 A complaint
signed by over 39 000 people was submitted to the Oce of Compliance
Advisor/ Ombudsman (CAO), an independent recourse mechanism for the
International Finance Corporation and the Multilateral Investment
Guarantee Agency that would provide nancial support for the construc-
tion of the mills.7 NGOs also lodged two so-called Specic Instances
against three European-based multinationals involved in the project for
alleged breaches of the OECD Guidelines for Multinational Enterprises.8
NGOs further led a complaint against two investment banks for support-
ing the project, alleging that it would violate the so-called Equator princi-
ples, an agreement between international banks in which they promise to
invest responsibly and respect environmental safeguards.9

claims by private persons against states, let alone to claims by private persons
against other private persons, this article uses the term as a shorthand for repara-
tion claims that can be presented by private persons in cases of transboundary
harm.
3 See for the facts and expected environmental impacts of the project:

International Finance Corporation, Cumulative Impact Studies of the Uruguay


Pulp Mills, www.ifc.org/ifcext/lac.nsf/AttachmentsByTitle/Uruguay_CIS_Oct
2006/$FILE/Uruguay_CIS_Oct2006.pdf.
4 Pulp Mills on the River Uruguay (Argentina v Uruguay); see brief discussion

by Bekker (2007).
5 The submission to the IACHR is available at www.cedha.org.ar/en/initia-

tives/paper_pulp_mills/peticion-cidh-nal.doc.
6 Press Release: Prosecutor Admits Criminal Case and Open Investigations of

Company Executives in Uruguayan Cellulose Case, www.cedha.org.ar/en/


more_information/papermills-criminal-case-federal-prosecutor.php.
7 UruguayOrion and Celulosas de MBopicua (CMB), www.cao-ombuds-

man.org/html-english/complaintOrionandCMB.htm.
8 The procedure is set forth in the OECD Guidelines for Multinational

Enterprises REVISION 2000, www.oecd.org/dataoecd/42/11/38297552.pdf,


pp. 3537. See for general discussion of this accountability mechanism Human
Rights, Alternative Dispute Resolution and the OECD Guidelines for
Multinational Enterprises, Brieng note for the participants at the Workshop on
Accountability and Dispute Resolution, Kennedy School of Government, Harvard
University 1112 April, 2007, www.oecd.org/dataoecd/42/11/38297552.pdf.
9 The Equator Principles, www.equator-principles.com/principles.shtml.
Cluster-litigation and environmental harm 13

In many other incidents a comparable set of options may be open. Thus,


when a chemical spill in the PetroChina chemical plant in the Chinese city
of Harbin caused massive pollution of the Songhua River resulting in
harm to Russian waters across the border,10 aected persons in Russia
could (theoretically) have litigated against the PetroChina chemical plant,
against the state of China, or they could have relied on the Russian gov-
ernment to press reparation claims against China.11
While the term cluster-litigation has not been used frequently in this
context, the phenomenon of multiple procedures in connection to a single
set of facts is not new and has been subject to scholarly analysis before. It
is at the heart of Harold Kohs concept of transnational legal process, a
term that refers to the the theory and practice of how public and private
actors nation-states, international organizations, multinational enter-
prises, non-governmental organizations, and private individuals interact
in a variety of public and private, domestic and international fora to
make, interpret, enforce, and ultimately, internalize rules of transnational
law.12
The phenomenon of cluster-litigation, and of transnational legal
process as dened by Koh, is relevant for two main reasons. First, on the
macro-level, it has considerable power to secure and explain compliance
with rules of international law. Compliance may not be ensured by any
particular form of litigation, but in combination, the use of domestic and
international fora may signicantly enhance the prospects that rules
of international law are complied with and that their objectives are
realized.13
Secondly, from the perspective of prospective claimants, the possibility
to use or trigger multiple proceedings is signicant because most individ-
ual litigation options are limited in terms of access, applicable law, reme-
dies etc. By resorting to multiple fora, litigants can attempt to undo these
limitations, and nd comprehensive and eective remedies.
It is this latter aspect of cluster-litigation that this chapter will explore.
The chapter will in particular focus on three issues. First, it will discuss the
pros and cons of various options that may be available to claimants in cases
of transboundary environmental harm. Secondly, it will identify the

10 See e.g. China apologizes to Russia for spill; Harbin reopens taps as

Khabarovsk plans emergency response; International Herald Tribune, November


28, 2005, p. 1.
11 See for a discussion of the legal responses to the incident, chapters 1012 of

this volume.
12 Koh (1996, pp. 183184).
13 Koh (1979, p. 2599).
14 International environmental law and conventions

limitations of separate options for presenting claims. Thirdly, it will explore


the way in which, by pursuing multiple options, litigants may overcome
such limitations.
The chapter is written from the perspective of international law. It con-
siders litigation options that in terms of competence, applicable law or
remedies are governed or at least inuenced by international law or that, in
terms of outcomes, can contribute to the realization of international
norms. It follows that questions of domestic law that are relevant to cluster-
litigation are only incidentally touched upon.
The chapter proceeds as follows. First it considers the question to what
forums prospective litigants may have access (section 2). It will then discuss
the procedural connections (or lack thereof) between the options (section
3); the connections (or lack thereof) between the responsibilities of defen-
dants in various fora (section 4); the limitations of the applicable law
(section 5); secondary principles of responsibility in various individual pro-
cedures (section 6); and nally the possible complementary eects between
various procedures (section 7). Section 8 contains brief conclusions.

2 ACCESS

In a scenario like that of the pulp mills dispute, litigants may have access to
a variety of options to present claims against persons allegedly responsible
for the transboundary harm. This section reviews four categories of
options for presenting claims: domestic courts, international human rights
courts, courts for interstate claims, and a residual set of non-legal forms of
accountability. While each of these options will have limiting rules on
access, claimants may pursue dierent options at the same time or back-to-
back. Moreover, claims with comparable aims may be pursued by dierent
parties (individuals, NGOs, states) each satisfying dierent standards for
access to litigation.

2.1 Domestic courts

Domestic courts may present an option to injured victims in essentially two


scenarios: (a) where private injured parties direct a claim either against a
private entity that allegedly is responsible for the harm, or (b) against a state
under whose jurisdiction such harm was caused.14

14 At least under US law, also a third option of universal jurisdiction may be

available for bringing claims against private parties that allegedly are responsible for
transboundary environmental harm. The Alien Tort Statute gives US courts
Cluster-litigation and environmental harm 15

In the rst scenario (claims by private claimants against private entities


allegedly responsible for the pollution), it will depend on the applicable
national law whether claimants have access to a domestic court. There are
two options, either they can bring such claim in their own state or they can
bring such claim in the courts of the place where the responsible party
caused the harm. In the European system, at least for civil proceedings
based on tort claims, both options are open and the claimant can choose
the forum. Council Regulation (EC) 44/2001 on jurisdiction and the recog-
nition and enforcement of judgments in civil and commercial matters pro-
vides that a person domiciled in a Member State may be sued in another
Member State in matters relating to tort, delict or quasi delict, in the courts
for the place where the harmful event occurred or may occur.15 Following
the judgment of the European Court of Justice in Bier, it is clear that the
defendant may be sued, at the option of the claimant, either in the courts
of the place where the damage occurred or in the courts of the place where
the source of the damage originated.16
It seems most convenient if the injured person(s) choose to litigate in
their own courts against a foreign private defendant. Not only will the
costs be substantially lower (there is no need to call on foreign counsel), but
the victim may perhaps also expect his own courts to be more sympathetic
towards his claim than a foreign court would.
The question of whether injured persons have access to their own
courts is not governed by international law but by domestic law.17
However, at least emerging international law now provides for a right to
eective access to judicial and administrative proceedings, including
redress and remedy.18

jurisdiction over civil claims based on violations of the law of nations. However, it
seems that cases of transboundary environmental harm do not belong to cases
covered by the jurisdictional provisions of the Alien Tort Statute; see US District
Court for the Southern District of New York, Amlon Metals v FMC Corp, 775 F
Supp 668 (SDNY 1991).
15 Council Regulation 44/2001, art. 5, para. 3, 2001 O.J. (L12) 1.
16 Case 21/76, Bier v Mines de Potasse dAlsace, 1976 E.C.R. 1735, 174849

(interpreting the meaning of the place where the harmful event occurred in art.
4(3) of the Convention of 27 September 1968).
17 Perhaps except for the case when transboundary environmental harm can be

construed as a human rights violation, triggering the right of access to a court; see
infra section 2.2.
18 Principle 12 of the Rio Declaration on Environment and Development,

Annex 1, UN Doc. A/CONF.151/26 (Vol. 1) (1993), available at http://www.


un.org/documents/ga/conf151/aconf15126-1annex1.htm. In Europe, of particular
relevance is art. 9 of the 1998 Aarhus Convention on Access to Information, Public
Participation in Decision Making and Access to Justice, 38 ILM (1999), 517.
16 International environmental law and conventions

The advantages of bringing a case in the own state of injured parties,


may be oset by the problems of execution of judgments (in particular if
these would provide for injunctions, cessation or compensation) in the
defendant state. That problem may induce the claimant to litigate in the
courts of the state where the person causing the transboundary harm is
based. Moreover, the possibility that a claimant may sue in his own courts
may not be available at all when no specic treaty or other international
instrument like Council Regulation 44/2001 is applicable. In the absence of
such a treaty or other international instrument, the victim will often have
no other choice than to sue the defendant(s) before the courts of the defen-
dant state, for in many cases the domestic conict of laws rules will deter-
mine that only the courts of the state where the defendant resides or is
registered are competent.
If a claimant seeks to use a foreign court in the state where the damage
is caused, access may be problematic. But here there is at least emerging
international law that seeks to alleviate any limitations that may exist.
The principle of non-discriminatory access requires access to remedies in
the state where the source of the harm is located.19 It is included in the
Draft Principles on the Allocation of Loss in the Case of Transboundary
Harm Arising out of Hazardous Activities, adopted by the International
Law Commission in 2006, providing that victims of transboundary
damage should have access to remedies in the state of origin that are no
less prompt, adequate and eective than those available to victims
that suer damage, from the same incident, within the territory of that
state.20
The second scenario in which a domestic court may provide a forum,
involves claims by a private claimant against the state under whose juris-
diction such harm was caused. This has not been a popular scenario in
practice. Claims in the courts of the claimant will usually be barred by
the immunity of the defendant state. The 2004 UN Convention on
Jurisdictional Immunities of States and their Property has not changed
this. Its exception for extra-territorial torts only applies if the tortfeaser was
present in the territory at the time of the act (e.g. torts caused by trac acci-
dents). The exception does not seem applicable to transfrontier harm like

19 See discussion in Birnie and Boyle (2002, pp. 269275).


20 UN Intl L. Commn, Draft Principles on the Allocation of Loss in the Case
of Transboundary Harm Arising out of Hazardous Activities, Report of the
International Law Commission on the Work of its Fifty-Eighth Session, at prin-
ciple 6, para. 2, UN Doc. A/61/10 (2006)); see also UN Watercourses
Convention, G.A. Res. 51/229, art. 32, UN Doc. A/RES/51/229 (21 May 1997);
Boyle (2006).
Cluster-litigation and environmental harm 17

climate change and a prospective litigant will have no eective access to a


court.21
The only option then is to bring a claim in the courts of the foreign state.
Here the same limitations to access apply as in the case of litigation against
a private defendant in a foreign state. The ILC Principles are in principle also
applicable here.22 However, it is doubtful whether the principle requiring
access to remedies against the state is a principle of customary international
law. In many parts of the world, transboundary litigation against the state is
a non-starter. This was also evidenced by events following pollution of the
River Songhua that resulted in harm to Russian waters across the border.23
An additional barrier that may arise both in the situation where a claim
is brought in the state where the harm is caused or in the state where the
harm originates, is caused by the requirement of most legal systems that
particular victims should have a sucient interest to le such a suit. Since
the damage caused by environmental harm may be widespread, this may be
an important restriction as far as the use of tort law is concerned. It is pos-
sible that the individual loss suered by each individual victim is so small
that no particular victim has a sucient interest to bring a claim. In such
cases, an NGO could represent all those who suer a loss from environ-
mental harm. Two distinct solutions may exist here: either the victims can
collectively act together in a so-called class action (provided that national
law allows this), or an NGO defending particular public interests may le
a claim. Many national and international legal documents now allow the
right of NGOs to le those claims, but strict conditions usually apply.24 For

21 United Nations Convention on Jurisdictional Immunities of States and Their

Property, art. 12, 44 ILM 803, UN Doc. A/RES/59/38 (2005) (providing: Unless
otherwise agreed between the States concerned, a State cannot invoke immunity
from jurisdiction before a court of another State which is otherwise competent in a
proceeding which relates to pecuniary compensation for death or injury to the
person, or damage to or loss of tangible property, caused by an act or omission
which is alleged to be attributable to the State, if the act or omission occurred in
whole or in part in the territory of that other State and if the author of the act or
omission was present in that territory at the time of the act or omission); see
also Hafner and Kohler (2004) (discussing the scope of the extra-territorial tort
exception in the UN Convention). See generally Fox (2002) (analysing the extra-
territorial tort exception).
22 UN Intl L. Commn, Draft Principles on the Allocation of Loss in the Case

of Transboundary Harm Arising out of Hazardous Activities, Report of the


International Law Commission on the Work of its Fifty-Eighth Session, at princi-
ple 6, para. 2, UN Doc. A/61/10 (2006).
23 Supra text to note 10.
24 McCormick (2005), discussing NGO litigation and monitoring of environ-

mental law implementation.


18 International environmental law and conventions

instance, if national law allows NGO claims in civil law at all, the NGO
must often demonstrate that it has existed for a substantial number of years
and that it clearly stipulated the specic protected interest as a goal in its
articles of incorporation.25 Moreover, most national laws hold that the
NGO may make claims for injunctions, but not for damages.26 Hence, the
choice of the victim has relevance for the remedy as well.
The principle of non-discriminatory access is applicable here as well, but
complications may arise in view of the question whether the foreign legal
system recognizes the legal status and procedural rights that have been
accorded by the state in which the NGO was set up.27

2.2 Human rights courts

A second option, complementing resort to domestic courts, is that private


persons who are injured by transboundary harm seek redress in an inter-
national human rights court. Though not a generally accepted right, a
decent or healthy environment exists as a human right,28 under now famil-
iar interpretations of the right to private life and perhaps the right to life,
international human rights courts may consider that environmental harm
constitutes an infringement of an international human right, in particular

25 For the locus standi of environmental organizations, see Betlem (1993,

pp. 305343).
26 Betlem (1993), supra note 25, at 497 (discussing a few exceptional cases in

which NGOs were also awarded damages, for instance with respect to bird clean-
up costs).
27 In Europe, some harmonization is now achieved through the European

Convention on the Recognition of the Legal Personality of International Non-


Governmental Organizations, Strasbourg, 24 April, 1986, Explanatory Report,
Doc. No. 124 (1986), available at http://conventions.coe.int/Treaty/en/Treaties/
Html/124.htm.
28 Birnie and Boyle (2002, pp. 254259). But this is dierent at regional level, in

particular in Africa: see art. 24 of the African Charter on Human and Peoples
Rights, 21 ILM 58. The African Commission noted in Communication 155/96
(The Social and Economic Rights Action Center for Economic and Social Rights v
Nigeria) that the right to a general satisfactory environment, as guaranteed under
Article 24 of the African Charter or the right to a healthy environment, as it is
widely known, therefore imposes clear obligations upon a government. It requires
the State to take reasonable and other measures to prevent pollution and ecologi-
cal degradation, to promote conservation, and to secure an ecologically sustainable
development and use of natural resources. See also art. 18 of the Protocol to the
African Charter on Human and Peoples Rights on the Rights of Women in Africa.
(proclaiming that Women shall have the right to live in a healthy and sustainable
environment), available at http://www1.umn.edu/humanrts/africa/protocol-
women2003.html.
Cluster-litigation and environmental harm 19

the right to life and the right to the private sphere of applicants.29 As to the
latter, the ECtHR noted that in order to fall within the scope of Article 8,
complaints relating to environmental nuisances have to show, rstly, that
there was an actual interference with the applicants private sphere, and,
secondly, that a level of severity was attained.30
Claims based on human rights treaties are necessarily directed against the
state responsible for such pollution, not against private entities. At least
before international human rights courts (the situation may be dierent in
domestic law) no horizontal claims against responsible private parties can
be made. In those cases where the harm was caused by a private party rather
than by the state, a claim may still be possible if it could be shown that the
state, by allowing such harm or by not eectively acting against it, violated
its own obligations under the treaty in question.31 Thus, a claim may be
directed against a state that would for instance grant a licence to a polluting
industrial facility, or fail to enforce its laws to seek to prevent pollution.32
Access to human rights courts will generally be limited to rather specic
situations. Apart from the fact that the environmental harm should be of
such a nature that it can qualify as an interference with a human right,
essentially two limitations apply.
First, the jurisdiction of human rights courts will be limited to cases
involving injury to claimants who were under the jurisdiction of the state
causing the harm. Under the generally accepted constructions of the
concept of jurisdiction, it is highly doubtful that the causing of pollution
by or from state A to a private person in state B would bring that latter
person under the jurisdiction of state A.33 The act of causing pollution in
a foreign state cannot be interpreted as an exercise of jurisdiction. This

29 Birnie and Boyle (2002, pp. 259261).


30 ECtHR, Fadeyeva v Russia (A. No. 55723/00), para. 70.
31 ECtHR, Fadeyeva v Russia (A. No. 55723/00), para. 89, noting that at the

material time, the Severstal steel plant was not owned, controlled, or operated by
the State. Consequently, the Court considers that the Russian Federation cannot be
said to have directly interfered with the applicants private life or home. At the same
time, the Court points out that the States responsibility in environmental cases may
arise from a failure to regulate private industry. Accordingly, the applicants com-
plaints fall to be analysed in terms of a positive duty on the State to take reason-
able and appropriate measures to secure the applicants rights under art. 8, section
1 of the Convention.
32 In Fadeyeva v Russia (A. F76), the Court formulated the standard as: the

Courts rst task is to assess whether the State could reasonably be expected to act
so as to prevent or put an end to the alleged infringement of the applicants rights
(para. 89).
33 Cf. ECtHR, Bankovic and Others v Belgium and 16 Other Contracting States

(A. No. 52207/99), Decision of 19 December 2001. But see Birnie and Boyle (2002,
20 International environmental law and conventions

means that foreign victims in principle cannot petition a human rights


court for harm caused abroad by a state that did not exercise jurisdiction
over the victim. This requirement makes it unlikely that there will be an
overlap in party structure with transboundary litigation against a state
before a domestic court.
The only option left, then, is that the claim is brought not by the
persons in the foreign state, but by persons in the foreign state who (also)
may be aected by the environmental harm or who have an interest (for
instance NGOs) in seeking redress for such harm. An example of a
(failed) attempt to bring a claim to a human rights courts in a case of
mixed (partly domestic, partly transboundary) environmental harm is a
claim brought by the Inuit Circumpolar Conference, representing 150,000
people in northern Alaska, Canada, Russia and Greenland, which led
a claim against the United States with the Inter-American Human
Rights Commission. The claim was based, inter alia, on alleged breach of
rights of indigenous peoples, the right to a healthy environment, and the
rights of people to freely dispose of their natural wealth and resources
under the Inter-American Convention on Human Rights (IACHR).
However, the claim was not considered by the Commission, because it
found that the information submitted did not enable the Commission to
determine whether the alleged facts could be characterized as a violation
of the IACHR.34
The second limitation is that in any case in the European system access
is limited by the condition that claims can only be brought by or on behalf
of individual victims of such environmental harm.35 However, no similar
requirement exists in the African system, which allows for a broad stand-
ing, the reason being the practical diculties that individuals who may wish
to bring a complaint face in many African states.36 The situation is similar
in the Inter-American System.37

pp. 265266) (arguing that if states are responsible for their failure to control sol-
diers and judges abroad, they may likewise be held responsible for their failure to
control transboundary pollution and environmental harm caused by activities
within their own territory).
34 Letter from Ariel Dulitzky, Assistant Executive Secretary, Inter-American

Commission of Human Rights, to Paul Crowley, Legal Representative, Barrister


and Solicitor, Canada (16 November 2006), http://graphics 8.nytimes.com/pack-
ages/pdf/science/16commissionletter.pdf.
35 Art. 34 of the ECHR; see discussion in Jacobs and White (2006,

pp. 482484).
36 Art. 56 of the African Charter on Human and Peoples Rights, supra note 28;

see discussion in Viljoen (2002, pp. 7576).


37 Art. 46 of the American Convention on Human Rights, 1144 UNTS 123.
Cluster-litigation and environmental harm 21

2.3 Forums for interstate claims

The third option is that claims seeking reparation for transboundary envir-
onmental harm are brought by a state where the harm is caused against a
state under whose jurisdiction the harm originated. A state can present
such claims for direct injury, that is, injury to the state itself, for instance its
territory, including its ecosystems or its infrastructure. However, it can also
present such claims for injury caused to its nationals, based on the ction
that harm to an individual can be qualied as harm to the state of which
that individual is a national.38 In cases of transboundary environmental
harm, interstate claims will rarely exclusively concern protection of rights
of nationals as it is likely that there will also be direct injury to the state.
However, at least in theory, the protection of rights of nationals does rep-
resent a separate basis of the claim.
Claims based on diplomatic protection are not normally brought in a
court, but presented through diplomatic means.39 However, the possibility
that a claim is presented before an international court or tribunal is not
excluded and at least in theory there is a large variety of international
courts and tribunals where interstate claims can be presented.40 These
include the International Court of Justice, if it would have jurisdiction on
the basis of a special agreement between the two states involved, on the
basis of Article 36(2) of the ICJ Statute or on the basis of a jurisdictional
basis in a treaty pertaining to environmental harm that applies to the inci-
dent in question. An example of the latter option is the claim brought by
Argentina against Uruguay in connection with the pulp mills dispute.41 An
alternative may be claims before an arbitral tribunal, illustrated by the
claim by Ireland against the United Kingdom in connection with the
radioactive pollution of the Irish Sea before an arbitral tribunal set up
under the Law of the Sea Convention.42

38 ILC, Commentaries on the Draft Articles on Diplomatic Protection with

commentaries 2006, para. 3, available at http://untreaty.un.org/ilc/texts/


instruments/english/commentaries/9_8_2006.pdf.
39 Cf. art. 1 of the Draft Articles on Diplomatic Protection with commentaries

2006: For the purposes of the present draft articles, diplomatic protection consists
of the invocation by a State, through diplomatic action or other means of peaceful
settlement, of the responsibility of another State for an injury caused by an inter-
nationally wrongful act of that State to a natural or legal person that is a national
of the former State with a view to the implementation of such responsibility.
40 See generally Romano (2007a).
41 Supra note 5. The jurisdiction was based on art. 60 of the Statute of the River

Uruguay (1975), UNTS (1982) nr. 21425.


42 Dispute concerning access to information under art. 9 of the OSPAR

Convention (Ireland v United Kingdom of Great Britain and Northern Ireland),


22 International environmental law and conventions

While interstate claims may well be an option to provide eective relief


and result, for instance, in termination of a polluting activity or compen-
sation (after all, the state may have much more leverage and power to
achieve a result than a single private claimant), it is not an option that is
at the disposal of private injured parties. Diplomatic protection is not a
right of the national but a right of the state. Under international law and
under most domestic legal systems, individuals have no right to compel a
state to exercise diplomatic protection.43 The right to bring a claim belongs
to the state. Moreover, if the state would be successful in claiming com-
pensation, such compensation would fall to the state and private persons
who have suered loss are not entitled to (part of) that compensation.44
Nonetheless, there may be an overlap and connection with litigation
options available to private parties, as a result of the principle of exhaus-
tion of local remedies.45

2.4 Non-judicial fora

Apart from the three categories of judicial proceedings discussed above,


there may be, depending on the circumstances, a variety of alternative pro-
cedures by which private persons can seek some form of reparation. In the
pulp mills dispute, these include complaints submitted to the Oce of
Compliance Advisor/Ombudsman (CAO), an independent recourse mech-
anism for the International Finance Corporation and the Multilateral
Investment Guarantee Agency,46 so-called Specic Instances against three
European-based multinationals involved in the project for alleged breaches
of the OECD Guidelines for Multinational Enterprises,47 and a complaint
against two investment banks for supporting the project, alleging that it
would violate the so-called Equator principles, an agreement between inter-
national banks in which they promise to invest responsibly and respect

Final Award, available at http://www.pca-cpa.org/upload/les/OSPAR%20A


ward.pdf.
43 Note though that in several states domestic courts have accepted that they

can exercise some form of judicial review over the (discretionary) exercise by a state
of its right to bring a claim; see Vermeer-Knzli (2006).
44 But see art. 19(c) of the ILC Articles on Diplomatic Protection, recom-

mending that A State entitled to exercise diplomatic protection according to the


present draft articles, should . . . transfer to the injured person any compensation
obtained for the injury from the responsible State subject to any reasonable
deductions.
45 Infra text to notes 5354.
46 Supra note 7.
47 Supra note 8.
Cluster-litigation and environmental harm 23

environmental safeguards.48 In other instances, resort to supervisory


procedures established under international environmental agreements may
be an option.49
While such options do not result in legally binding outcomes, they may
result in forms of accountability that serve the interests of claimants. They
may result for instance in an authoritative statement that a particular act
resulting in, or contributing to, transboundary environmental harm was in
conict with an international obligation or that a contested project would
result in signicant environmental harm irrespective of the applicability
of any particular obligation. Findings under such procedures may, irre-
spective of their legal status, in part as a result of the impact on public
opinion, induce parties to stop the act that may contribute to cases of trans-
boundary environmental harm. An illustration of this is the decision of the
Dutch bank ING to pull out of the funding of the Uruguay pulp mills fol-
lowing reports, triggered by NGOs, of the environmental eects of the pulp
mills. In that respect such non-judicial forms may indeed be complemen-
tary and even present an alternative to judicial procedures.50

3 FORMAL CONNECTIONS BETWEEN THE


OPTIONS

The various procedures described above are relatively, but not fully,
autonomous. In principle, between domestic procedures as well as between
international procedures, no formal connections exist. However, between
international and domestic options certain rules of hierarchy may regulate
the order in which such options are pursued.
As to domestic options, international law does not establish any form of
hierarchy between them. Every court that is entitled to exercise jurisdiction
(under domestic law, but always within the limits of international law) is
entitled to do so. General international law does not grant priority to either
the court where the harm materialized or the court where the harm is
caused. No rule of international law would dictate that one procedure
would have to wait for the other. It depends on domestic law whether
certain allocation rules apply, for instance the forum non conveniens. In this

48Supra note 9.
49Fitzmaurice and Redgwell (2000).
50 Press release: ING Group of Netherlands pulls out of controversial paper-

mill while World Bank postpones loans following critical review of environmental
impact studies: http://www.cedha.org.ar/en/more_information/ing-postpones-
loans.php.
24 International environmental law and conventions

respect, parallel litigation is certainly an option, as was illustrated in the


Potassium Mines case where litigation simultaneously proceeded in Dutch
and French courts.51
Between the international options, under general international law no
rules on allocation of competence exist either. International law does not
dictate that a procedure before the ICJ should wait for a procedure before
the ECHR or vice versa. The procedures are independent, unless, of course,
parties have specically agreed otherwise and notwithstanding the possi-
bility that courts themselves have developed certain principles of allocation
or restraint, such as comity.52
The situation is dierent for the relationship between domestic proce-
dures on the one hand and international procedures on the other.53
International human rights procedures are contingent on a prior exhaus-
tion of local remedies and are thus in principle only available when the lit-
igants have exhausted the claims that may exist under domestic law against
the state.54 This makes it unlikely that there can be parallel litigation of the
same human rights claim in a domestic and an international court (assum-
ing that there is a case where an injured claimant was under the jurisdiction
of the responsible state).
In principle, the requirement of exhaustion of local remedies also applies
in case of interstate claims based on diplomatic protection.55 However, pre-
cisely in cases of transboundary harm, an exception may apply. The 2006
Articles on Diplomatic Protection provide that local remedies do not need
to be exhausted when there is no relevant connection between the injured
person and the state.56 The Commentary states on this point that it would
be unreasonable and unfair to require an injured person to exhaust local
remedies where his property has suered environmental harm caused by
pollution, radioactive fallout or a fallen space object emanating from a
State in which his property is not situated; or where he is on board an air-
craft that is shot down while in overight of another States territory.57
It is somewhat uncertain whether this exception is a part of positive

51 Lammers (1989).
52 MOX Plant, Annex VII Arbitral Tribunal Order No. 4 (14 November 2003)
(suspending proceedings until the ECJ has given judgment). See for a discussion of
various principles of allocation of jurisdiction between international courts, Shany
(2003).
53 See generally, Shany (2007).
54 Art. 35(1) of the ECHR; art. 46(1)(a) IACHR; art. 50 African Charter.
55 Art. 14 of the 2006 ILC Draft Articles on Diplomatic Protection.
56 Art. 15(c) of the 2006 ILC Draft Articles on Diplomatic Protection.
57 http://untreaty.un.org/ilc/texts/instruments/english/commetaries/9_8_2006.

pdf, p. 81, para. 7.


Cluster-litigation and environmental harm 25

international law. Whereas in several environmental cases, including the


Trail Smelter case,58 the defendant state did not insist on exhaustion of
local remedies, it may be that this can be explained by the fact that they
provide examples of direct injury, in which local remedies do not need to
be exhausted.59 If we nonetheless assume that Article 15(c) as adopted by
the ILC indeed represents the state of the law, there may not be a barrier
against simultaneous proceedings at domestic level in the defendant state
and an action based on diplomatic protection.

4 THE SEPARATE RESPONSIBILITY OF THE


PARTIES

In case litigation is directed against a multiplicity of responsible parties


(e.g. a private industrial facility, a state with jurisdiction over that facility,
perhaps also an international investment bank), the responsibility of each
of these parties in principle will be separate and autonomous.
To the extent that multiple parties may be responsible under interna-
tional law, each party involved will be responsible for its own acts or omis-
sions. A determination that one party is or is not responsible in principle
will be without prejudice to the responsibility of the other parties involved.
Even when two parties, by separate wrongful acts, contribute to the same
damage, the responsibilities are separate.60 An example would be a case
where two states, separate from each other, cause pollution of an inter-
national waterway. It may also happen that one state would assist another
state in causing a situation of transboundary harm (e.g. by building an
industrial facility in the latter state that then will cause pollution of a river).
Both situations may give rise to the responsibility of both states, but the
basis and extent of their responsibility is separate. In the rst example both
states may have breached an obligation to prevent transboundary pollu-
tion, whereas in the latter example one of the states may be responsible for
assisting another state in breaching that obligation.61 A similar situation
might arise in case of aid given by an international organization to a state.

58 Trail Smelter Arbitration (United States v Canada), 3 R. Intl Arb. Awards

1911 (1938), reprinted in 33 AJIL182 (1939), 3 R. Intl Arb. Awards 1938 (1941),
reprinted in 35 AJIL 684 (1941).
59 http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.

pdf, p. 81, para. 7.


60 Art. 47 of the Articles on State Responsibility, Annex of UN Doc. A/Res/56/

83 of 28 January 2002.
61 Art. 16 of the Articles on State Responsibility.
26 International environmental law and conventions

In such cases (which would seem to cover most instances where an


organization could be held responsible in cases of transboundary harm),
the organization could not be held responsible for the harm as such, but for
the aid given.62 The responsibility of the organization does not formally
imply or exclude the responsibility of the state, or vice versa.
This is of course also true if dierent defendants (industrial facility, state,
international organization etc.) operate within separate legal orders.
Responsibility of a state under domestic law is without prejudice to the
states responsibility in international law and vice versa. Obviously the
responsibility (or lack thereof) of a private facility under domestic law does
not tell us anything about the responsibility of the state that may have con-
doned its polluting activities under international law.
A further illustration of this principle is the fact that when a state acts in
conformity with its obligations under an international agreement and on
that basis will not be responsible under international law, the state may well
be responsible under domestic (tort) law. Moreover, an industrial facility
that acts in accordance with legislation that implements the obligations
may well be responsible under domestic law for its role in transboundary
environmental harm.
It could be argued that as long as a state, or a private facility, under
domestic law follows the standards mandated by a regulation or a permit
that gives eect to an international obligation, they should be freed from
liability under domestic law. This argument is a variant (distinguishing
itself by the fact that here the origin of the regulation is an international
obligation) of the often discussed regulatory compliance defence.
However, while some argue in favour,63 there are strong opponents against
such a regulatory compliance defence.64
In cases not involving international law, domestic legal systems seem to
deny such a defence. For instance, the notion that industry would be freed
from liability as long as a regulatory standard is followed is rmly rejected
in Belgium.65 The idea is that the administrative authority, when granting
a licence and setting permit conditions, cannot take into account the pos-
sible harm that the licenced activity might cause to all possible third parties.
Third party rights to compensation for damages, therefore, may not be
impaired simply because the operator of a plant followed the conditions of

62 Draft art. 12 of the draft articles on the A/60/10, Ch. VI, pp. 192206 at p. 96.
63 See Bergkamp (2001, pp. 239258), arguing that if polluters rst have to
comply with the conditions of a licence and subsequently still can be held liable for
damages, they have to pay twice.
64 See, e.g., Wenneras (2005).
65 For further details see Faure (1999, p. 203).
Cluster-litigation and environmental harm 27

a licence. Meeting the conditions of a permit is just a minimum. A plant


owner has to take all possible precautions as required by tort law in order
to avoid causing harm to third parties through his licensed activity. Also, in
the Netherlands, the question of whether following the conditions of a
licence would have a justicative eect in tort has been answered in the neg-
ative.66 An exception would exist only if the interests of the potential
victims were clearly taken into account when the conditions of the permit
were set.67 This point is made clear in the decision of the Dutch Supreme
Court that dealt with pollution caused by potassium mining in the Alsace
region of France.68 The potassium mine owners argued that the emissions
were within the limits set by their permit and, therefore, not illegal. The
court, however, judged that the licence had not taken into account the
potential harmful eects of the emissions for third parties and thus could
not release the potassium mines from liability.
It seems that the situation is the same in a case where domestic regula-
tion is based on international law (or in a case where an international legal
regulation applies directly). Although regulatory compliance may play
some role in assessing liability, following regulations is merely a minimum.
It might perhaps only play a role in exceptional cases where all the interests
have been weighed ex ante and the potential victims damage was taken
into account when the administrative conditions were set. But when a
domestic regulation is based on and gives eect to an international agree-
ment, this is a rather unlikely scenario. In that respect, it seems that the
non-responsibility of a state based on the fact that it complied with inter-
national law is without prejudice to its liability under domestic law, or to
the liability of private actors that may have acted in compliance with stan-
dards based on the international agreement.

5 THE LIMITED SCOPE OF THE APPLICABLE LAW

A further feature of the co-existence of multiple options for potential


claimants is that generally each option will consider only part of the

66 Banketbakker Krul/Joosstens, Hoge Raad der Nederlanden [HR] [Supreme

Court of the Netherlands], 30 January 1914, NJ 497 (Neth.); Vermeulen/


Lekkerkerker, Hoge Raad der Nederlanden [HR] [Supreme Court of the
Netherlands], 10 March 1972, NJ 278 (ann. G.J. Scholten) (Neth.).
67 Rus-Van der Velde (1989); Nieuwenhuis (1991).
68 Mines de Potasse dAlsace S.A. (MDPA) v Onroerend Goed Maatschappij

Bier B.V. et al., Hoge Raad der Nederlanden [HR] [Supreme Court of the
Netherlands], 23 September 1988, 21 NETH. Y.B. INTL L. 434 (1990).
28 International environmental law and conventions

normative spectrum that may be applicable to actors who are responsible


for transboundary environmental harm. A state that causes transboundary
environmental harm may at the same time act in breach of its domestic law,
of foreign law that may be applicable, of an international human rights
treaty, of one or more environmental treaties and of general international
law. However, it is unlikely that all these (potential) causes of action can be
considered by a single court.
Domestic courts generally will only be entitled to apply the domestic law
that is applicable to a (allegedly) responsible party. Human rights courts
will only consider human rights law that may be applicable to the event.
Interstate courts will only consider those rules of international law over
which they have jurisdiction, and so on. While a defendant state may in fact
have breached domestic law, human rights law and interstate obligations
pertaining to the environmental harm, the determination of such breaches
and the consequences thereof can only be pursued in various courts and
tribunals, each with a limited jurisdiction. However, some courts may be
inclined to reach out beyond their narrow connes, incorporate bodies of
law that really belong to another domain, and undo the eects of the frag-
mented organization of the litigation options.
In domestic cases, the applicable law will primarily be domestic law, with
the law of the forum determining whether that is the domestic law of the
forum state or of the state where the harm originated. International law is
neutral in principle on the applicable law in domestic proceedings, though
this may be subject to the (emerging) requirement that they should provide
for eective redress in cases of transboundary environmental harm.69
Domestic courts may consider international human rights law and inter-
state obligations where that is allowed under the constitutional law of the
state in question and in some cases also under judicially invented doctrines
that would allow courts to consider rules that are not part of domestic law
at all or perhaps not even binding on the state.70 Also, international (envir-
onmental) law may then be relevant as a basis for claims.71 This may allow
them to overcome limitations in the applicable law and to consider a wider
part of the normative spectrum.
There are obvious barriers against such an approach. International
obligations to protect the environment apply between states. Citizens in
principle cannot bring a claim based on a breach of a treaty obligation by
a defendant state, nor could the victim of climate change directly base tort

69 Principle 6 of the Draft Articles of the Allocation of Loss, supra note 20.
70 Knop (2000).
71 Generally, Anderson and Galizzi (2002).
Cluster-litigation and environmental harm 29

liability of private parties that caused such harm on the violation of treaty
obligations since these only bind states.72
However, the inuence of international law on domestic liability is not to
be excluded. International environmental law can be used as elements in the
interpretation of the domestic law on which a claim is based. In tort cases,
international law arguably may be relevant in giving substance to what due
care requires.73 In cases involving the exercise of administrative discretion,
it can also be used as one of the bases to review such exercise. In a number
of cases, courts have held that international law should be taken into
account in the application of the principles of administrative review.
Whether a rule of international law has direct eect or not is immaterial.
Thus, it was ruled that the regional executive authority of the province of
Gelderland in the Netherlands had acted unreasonably by approving a
zoning plan that threatened the habitat of the combed salamander, which
was protected by the 1979 Bern Convention.74 The unreasonableness was
partly based on the provinces neglect of the Convention provisions.75 This
method may enable national courts to assess compliance with the Bern
Convention without the courts having to solve the problem that the
Convention only regulated the rights and duties of states.
Relying on international law in cases involving transboundary environ-
mental harm may be easier where environmental harm can be construed as
a human rights violation, a situation that in many cases (but in no means
all China and the United States being notable examples of states where
this will not be possible) will allow the claimant to rely on international
human rights law to protect their interest.
Also, in human rights courts the applicable law is naturally limited
namely to the law contained in the treaty by which they were established.
For instance, Article 32 of the ECHR provides that The jurisdiction of the
Court shall extend to all matters concerning the interpretation and appli-
cation of the Convention and the protocols thereto not more, but also
not less. Nonetheless, human rights courts have been willing, under the
doctrine that the conventions should be interpreted in the light of general
international law, to also consider other rules of international law, for
instance those imposing obligations to protect the environment on states.76
That may be relevant in determining whether certain interferences with

72 Bodansky and Brunne (1998).


73 Nollkaemper (1998).
74 Convention on the Conservation of European Wildlife and Natural Habitats,

available at http://conventions.coe.int/Treaty/en/Treaties/Html/104.htm.
75 Afd. G.R. v S., 22 April 1991, AB 1991, 592.
76 Al-Adsani v the United Kingdom, (A. No. 35763/97), para. 55.
30 International environmental law and conventions

individual rights are pursued for a legitimate objective.77 For instance, while
a state may argue that a polluting facility is necessary to supply energy to
the population and as such would qualify as a legitimate objective that may
justify an interference, the fact that the operation of such a facility would
violate an international legal obligation, might undermine that argument.
Interstate claims would generally concern an international claim. That is,
the claim would be based on an alleged violation of an international oblig-
ation, engaging the international responsibility of the wrongdoing state.
While there may be a variety of international rules that could be relevant
as a basis for such a claim, whether such rules can be applicable law depends
fully on the jurisdiction of the court or tribunal. It is very rare that an
international court would be allowed, in a case involving transboundary
environmental harm, to consider the full spectrum of international
(environmental) law that determines the full scope of obligations of the
wrongdoing state.

6 THE LIMITED SCOPE OF APPLICABLE


SECONDARY RULES OF RESPONSIBILITY

What has been said on the limitation of the applicable law also applies to a
certain extent to the applicable (secondary) principles of responsibility.
This holds in any case for the distinction between domestic and interna-
tional options. Each will apply its own rules on liability or responsibility.
To some extent that also may be true between various international
courts.78 It is arguable, though, that the secondary rules of international
law, that are applicable to breaches of rules of international law as these
may be considered by domestic courts, human rights courts or interna-
tional courts, should be applicable in all cases involving claims based on
international law, irrespective of the forum.
At the domestic level, each state will have its own liability regime.
International law has created, at least for transboundary claims, some
minimum standards. Based on the recognition that access is irrelevant if the
state chooses to make no provision for liability, denies any remedy, or
confers immunity on defendants, and building upon the 1992 Rio
Declaration79 and work of the International Law Association (ILA),80 the

77Al-Adsani, supra note 76, para. 54.


78Gray (1999).
79 Supra note 18.
80 International Law Association London Conference (2000), Committee on

Water Resources Law, Campione Consolidation of the International Law Association


Cluster-litigation and environmental harm 31

draft liability principles adopted by the ILC propose a minimum standard


of timely and eective redress. Principle 3 sets out that the draft principles
aim to ensure prompt and adequate compensation to victims of trans-
boundary damage and Principle 4 provides that Each State should take all
necessary measures to ensure that prompt and adequate compensation is
available for victims of transboundary damage caused by hazardous activ-
ities located within its territory or otherwise under its jurisdiction or
control.81 However, the requirement to provide timely and eective redress
does not apply to claims against the state. The principles envisage primar-
ily that claims are brought against the operator. Although the state should,
if this is insucient to provide adequate compensation, ensure that
additional nancial resources are made available, no liability on the state is
prescribed.82
Claims in domestic courts are not in principle subject to principles of
international responsibility as these apply in international courts. It was a
rare case when the District Court of Rotterdam in the Netherlands, in adju-
dicating claims of Dutch farmers who had suered damage as a result
of discharges of chlorides into the River Rhine by French mines near
Strasburg, based its conclusion that a tort had been committed directly on
the general principle of (international) law that a wrongful act entails
responsibility.83 The normal construction is to provide redress for viola-
tions of international law in transboundary civil litigations through the
application of domestic law and to give eect to international law in the
application of domestic (liability) law.
It can be argued, however, that in their application, primary and
secondary norms are interdependent and normatively inseparable, and that
all courts called upon to adjudicate a claim based on international law,
should operate within that framework. This approach is supported by
international case law in which it has been held that if a claim is based on
international law, international principles of responsibility are automati-
cally applicable. The Annulment Committee in the Vivendi case drew a dis-
tinction between claims under domestic law, which were governed by
domestic principles of attribution, and claims based on a treaty, to which
international secondary principles apply. It said:

Rules on International Water Resources 19661999, art. 51 (2000), available at


http://www.ila-hq.org/pdf/Water%20Resources/Water%20Res%20Report%202000.
pdf.
81 Supra note 20.
82 Principle 4(5) of the Draft Principles on the Allocation of Loss.
83 See District Court of Rotterdam, 8 January 1979, NJ 1979, nr. 113, Id., 16

December 1983, NJ 1984, nr. 341.


32 International environmental law and conventions

in the case of a claim based on a treaty, international law rules of attribution


apply, with the result that the state of Argentina is internationally responsible
for the acts of its provincial authorities. By contrast, the state of Argentina is
not liable for the performance of contracts entered into by Tucumn, which pos-
sesses separate legal personality under its own law and is responsible for the per-
formance of its own contracts.84

It is arguable that the proposition that there is a fundamental connection


between a claim based on international law and the applicability of sec-
ondary principles of responsibility is applicable not only in courts with
jurisdiction over interstate claims, but also in human rights courts and even
in domestic courts. For even when the rule of international law on which
the claim is based is incorporated in domestic law, it does retain its inter-
national character.85

7 THE COMPLEMENTARY NATURE OF THE


DIFFERENT OPTIONS

Although, as has been discussed above, the various options that may be
open to litigants in principle are independent from each other, they can be
complementary in several respects. First, the options can be complemen-
tary since, as discussed in section 2, injured parties may have access to some
procedures but not to others. If the aim is to provide redress for all injured
parties (private parties and states), a combination of complementary
options will be necessary.
Secondly, since many procedures are limited to certain defendants, it may
be necessary to pursue several procedures to achieve remedies vis--vis all
relevant parties. For instance, in the pulp mills dispute, action in the ICJ or
the IACHR could not result in a remedy for the two multinationals or the
investment banks involved, and action under the OECD Guidelines could

84 ICSID, Vivendi v Argentina, Decision on Annulment, 2002 ICSID, 41 ILM

1135, 96 (3 July 2002). Similarly, a UK court held that when an arbitral tribunal
addressed the rights of a private party Occidental Exploration & Production Co
(OEPC) in international law vis--vis Ecuador, It must follow . . . that if the tribunal
concluded that international law rights of OEPC had been violated by Ecuador, or
the latter was in breach of its international law obligations, then the tribunal will
have to consider what remedies are available in international law to repair any damage
caused to OEPC by Ecuadors breach of OEPCs international law rights (empha-
sis added); High Court of Justice, Queens Bench Division, Commercial Court, per
Mr Justice Aikens, The Republic of Ecuador v Occidental Exploration & Production
Co, 2 February 2006; [2006] EWHC 345 (Comm), para. 122.
85 This argument is further developed in Nollkaemper (2007).
Cluster-litigation and environmental harm 33

not reach the state of Uruguay etc. Also, for reasons indicated above, it is
unlikely (though not excluded) that in domestic courts eective remedies
may be found against foreign states. Where more parties are involved,
various procedures can be complementary to get the results that the
claimants seek, in particular in terms of orders to stop the contribution to
the transboundary environmental harm.
Thirdly, and directly related to the previous point: the options can be
complementary since some of them can only deliver partial remedies that,
moreover, may not be easily enforceable. International human rights courts
may be useful to obtain a declaratory judgment and perhaps a determina-
tion that the responsible state should provide compensation or restitution,
but it is most unlikely that that compensation would be at the same level of
what could be obtained in many domestic jurisdictions. The same is true for
judgments of the ICJ. Moreover, both type of judgments may encounter
great diculty if an interested party seeks to enforce them at the domestic
level. Domestic procedures may then provide an important complementary
option.
Whereas for these reasons dierent litigation options may be comple-
mentary and may strengthen each other, it may also be the case that some
of them are redundant. That is, one or two options can deliver everything
that is aimed for, to which other options have little to add. If a domestic
court provides an eective injunction against a polluting industrial facility,
a ruling of an international human rights court or the ICJ to the eect that
the state should ensure that that facility does no longer pollute may have
little additional value even though formally a judgment in the local court
may not aect the procedure in an interstate court.
Another dimension of the co-existence of multiple options is that one
particular option can contribute to the mitigation of resolution of disputes
between other parties. For instance, domestic proceedings can contribute
to mitigating or resolving claims of interstate disputes. Whether this is the
case depends primarily on, rst, the identity of claims and, secondly, on the
identity of remedies.86
An example may illustrate the issue. In the Potassium Mines case, a
parallel set of disputes existed between, rst, the Dutch farmers and the
French mines and, secondly, the Netherlands and France. The claims of the
Dutch farmers were based on a dierent (domestic) cause of action than
the claim of the Netherlands (based on international law). Assume that a
Dutch or French court would have awarded a remedy that would have
resulted in termination of the discharges of chlorides. What eect would

86 See discussion in Schreuer (1981, pp. 327347).


34 International environmental law and conventions

such a remedy have had on the dispute between the Netherlands and
France? This will in large part depend on what remedies the Netherlands
would seek. If the only remedy sought would be termination of the pollut-
ing activity, the interstate dispute would be devoid of substance and the
domestic litigation would directly eect the continued existence of the
interstate dispute. If, on the other hand, the Netherlands would have aimed
for a declaration of wrongfulness of international law against France, that
remedy could not possibly have been achieved in the domestic court. And
if the aim would be to obtain compensation for direct injury, a domestic
award, even if that would have resulted in compensation of the private
claimants, would not take away the basis of that litigation.
In cases where the interstate claim is an exercise of diplomatic protection,
the eect of domestic proceedings on an interstate dispute is closely related
to the eect of the local remedies rule. After all, the intention of that rule
is to ensure that a domestic court is allowed to provide a proper remedy so
that the interstate dispute is solved.
The general point is therefore that a domestic court can remove the cause
and existence of an international dispute if the injury underlying that dispute
is such that it can be remedied by a domestic court.87 Where a state makes no
claim for damages for an injured national, but simply requests a decision on
the interpretation and application of a treaty, there is no need for local reme-
dies to be exhausted.88 But much depends on the nature of such mixed
claims. It seems that local remedies must be exhausted where the request for
a declaratory judgment is linked to other relief arising out of injury to a
national.89 It follows that, despite the claim for a declaratory judgment, the
domestic avenue could, if eective, result in a resolution of the dispute.
The reverse eect may also occur. In cases where an international court
determines that a state is obliged to terminate an activity causing trans-
boundary pollution, and the state secures that aim under domestic law, the
basis underlying a claim between a private injured party and the private

87 Thirlway (1995) states: Obviously if the claim is such that it does not involve

injury of a kind which could be remedied by recourse to the local courts, the rule is
totally excluded; not however because purely inter-State rights are involved, but
because the claim is of such a kind that redress could not be obtained in local courts.
But if the essence of the matter is injury to nationals, whose claim is being espoused
by their State, and redress by the local courts will eectively put an end to the
dispute, then the rule will apply to render inadmissible also any subsidiary aspects
of the claim which might be regarded as strictly matters of direct inter-State rela-
tions; J Dugard, Second Report on Diplomatic Protection, A/CN.4/514 (2001),
para. 26.
88 Dugard, supra note 87, para. 27.
89 Discussed in Dugard, supra note 87, para. 28.
Cluster-litigation and environmental harm 35

entity causing the pollution may fall away, at least to the extent that that
claim is aimed at termination. However, a claim for compensation will in
principle be unaected.
Similar inuences on the continued existence of a claim can arise as a
result of non-judicial forms of accountability. For instance, a specic
instance review under the OECD may well lead to a change in behaviour of
a multinational corporation that is also a defendant in domestic litigation,
thus taking away (part of) the basis of that latter claim.

8 CONCLUSIONS

Litigation has become a more powerful and important part of the settle-
ment of transboundary disputes. In recent years, we have seen major
improvements, for instance as a result of the willingness of states to use
interstate procedures, the active role taken by human rights courts, the
adoption of the ILC Principles on allocation of loss etc.
Major dierences continue to exist, however, between states and regions.
The full range of options available in the Potassium Mines case were hardly
an option in the case of pollution of the River Songhua. In current inter-
national law (and on a worldwide scale), major hurdles still exist for
eective access to remedy in transboundary disputes.
The above analysis presents a picture of an unorganized system of
overlapping procedures, reecting the decentralized nature of interna-
tional law and its divide with national law. This unorganized nature may
carry some risks (fragmentation) and perhaps is not fully ecient. It may
also be rather burdensome for those defendants who may be confronted
with multiple claims. However, on the whole it does provide mostly
benets for persons who are injured by a case of transboundary environ-
mental harm.
In a fragmented system with uncertain outcomes, it is likely that we will
see more cases of what this chapter called cluster-litigation, by which limi-
tations of individual procedures may be overcome and by which multiple
procedures, in a rather unorganized manner, may eventually enhance the
chance that disputes over transboundary environmental harm are resolved
and, where appropriate, reparation is provided.

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36 International environmental law and conventions

Bekker, P.H.F. (2007), Double Interim Relief Denial in Argentina-Uruguay Pulp


Mill Dispute before the World Court 11, ASIL Insight, 2.
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Betlem, G. (1993), Civil Liability for Transfrontier Pollution: Dutch Environmental
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Somsen (eds), Yearbook of European Environmental Law, 4, 149.
3. The role of international
conventions in solving
transboundary pollution disputes
James Harrison1

1 INTRODUCTION

The Case Concerning the Pulp Mills on the River Uruguay is the latest
dispute to come before the International Court of Justice (ICJ) which raises
issues of environmental protection and transboundary pollution.2 The case
involves the construction of pulp mills in Uruguay which Argentina alleges
will have negative eects for the environment and the ecosystem of the
River Uruguay. Through authorizing the pulp mills, Argentina claims that
Uruguay has violated its procedural and substantive obligations under the
1975 Statute on the River Uruguay.3 It is this treaty that forms the basis of
the Argentine application to the ICJ.
On the face of it, the dispute concerns a single bilateral treaty between
Argentina and Uruguay. However, the wider framework of international
environmental law is also relevant to the settlement of the dispute. This
analysis will consider the various ways in which other international instru-
ments may be used to interpret and apply the 1975 Statute.
In addition, the dispute illustrates potential problems caused by the well-
known phenomenon of the fragmentation of international law. This analy-
sis will therefore also consider the multi-faceted nature of the dispute,

1 Thanks to Professor Alan Boyle, Professor Toru Iwama and Jill Robbie for

constructive comments on a previous draft of this chapter. Any mistakes are, of


course, attributable to the author.
2 Other cases which touched on environmental protection include the Icelandic

Fisheries Cases (1974) ICJ Reports 3; the Nuclear Tests Cases (1974) ICJ Reports
253 and 457; the Legality of Nuclear Weapons Advisory Opinion (1996) ICJ
Reports 226; the Case Concerning the Gabcikovo-Nagymaros Project (1997) ICJ
Reports 7.
3 1975 Statute of the River Uruguay, UNTS, vol. 1295, no. 21425; hereinafter,

1975 Statute.

38
The role of international conventions 39

assessing what problems are posed by the existence of several overlapping


treaties which can be invoked in distinct adjudicative fora.

2 BACKGROUND TO THE DISPUTE

The dispute concerns plans to build a paper mill and a port in Uruguay on
the banks of the River Uruguay.4 Argentina opposes the proposals because
it believes that the construction and operation of the mill will have serious
environmental consequences, in particular on the water quality of the river.
The River Uruguay is a major international river which ows for 1,610
kilometres, originating in Brazil and passing through Argentina and
Uruguay before entering the Rio de la Plata and nally the Atlantic Ocean.
In its latter stages, the river forms the boundary between Argentina and
Uruguay. This boundary was delimited by an agreement between the two
states in 1961.5 Further to this delimitation treaty, the two countries con-
cluded another agreement to regulate the use of the river: the 1975 Statute
of the River Uruguay. It is this instrument which provides the legal basis for
the Argentine application to the International Court of Justice in this case.
The objective of the 1975 Statute is to establish the joint machinery nec-
essary for the optimum and rational utilisation of the River Uruguay.6 The
regime created by the Statute covers most major uses of the river including
navigation, pilotage, the operation of port facilities, search and rescue,
salvage, the use of water and other resources, the prevention of pollution,
research and law enforcement. The Statute imposes substantive as well as
procedural obligations on the two states.
In this dispute, Argentina alleges that Uruguay has violated its obliga-
tions under the 1975 Statute of the River Uruguay and other rules of inter-
national law by authorising the construction of the pulp mills. The dispute
originated in October 2003 when Uruguay provisionally authorised a
Spanish company, ENCE, to construct a pulp mill on the banks of the River
Uruguay.7 The following year, a Finnish company, Botnia, was also

4 The original application cited the construction of two paper mills; one by a

Finnish company, Botnia, and another by a Spanish company, ENCE. However,


ENCE has since announced its intention to relocate its proposed paper mill; see
ENCE (2006) Relevant Fact 22 September 2006. Available at http://www.ence.es/
Publico/noticias.php?Id=191. Accessed 6 August 2007.
5 1961 Montevideo Treaty, UNTS, vol. 1295, no. 21425.
6 1975 Statute, Article 1.
7 See Case Concerning Pulp Mills on the River Uruguay (Provisional

Measures), Order of 13 July 2006, at para. 5. Hereinafter, Order of 13 July 2006.


All materials which are connected with the case are available at http://www.
40 International environmental law and conventions

provisionally authorised to build a pulp mill in the same area.8 According


to the Application by Argentina, Uruguay failed in the case of both
proposed paper mills to follow the notication procedures found in Articles
7 to 13 of the 1975 Statute.9 Moreover, Uruguay had allegedly failed to
respond to requests for information by the Argentine authorities.10
Following a change of government in Uruguay, the two countries created
a High Level Technical Group in May 2005 to discuss the problems. This
Group met 12 times between August 2005 and January 2006 but it was
unable to come to a mutually acceptable solution.11 Indeed, the dispute
deteriorated in July 2005 when Uruguay authorised the construction of a
port at one of the mills. Reecting the seriousness of the disagreement,
direct negotiations took place between the presidents of the two countries
in March 2006. However, the negotiations were unsuccessful and Argentina
led an application with the International Court of Justice in May 2006,
citing Article 60 of the 1975 Statute as its basis for jurisdiction. Article 60
provides any dispute concerning the interpretation or application of the
Treaty and the Statute which cannot be settled by direct negotiations may
be submitted by either party to the International Court of Justice.
On the same day as ling its application with the Court, Argentina also
submitted a request for provisional measures.12 Argentina requested the
Court to order Uruguay to suspend all authorisations for the construction
of the two mills and to take all necessary measures to ensure that the build-
ing work did not continue until the Court gives its nal judgment.13 In addi-
tion, it called on Uruguay to abstain from taking any other unilateral
measures relating to the construction of the mills which were incompatible
with the 1975 Statute or with other rules of international law necessary for
its interpretation and application.14 Finally, the Court was asked to order
Uruguay to co-operate in good faith with Argentina, whilst refraining from
taking any unilateral action that would aggravate the dispute.15 Oral

icj-cij.org/docket/index.php?p 1=3&p 2=3&k=88&case=135&code=au&p 3=7.


Accessed 16 August 2007. See also footnote 4 above.
8 See Order of 13 July 2006, at para. 6.
9 Application instituting proceedings led by Argentina at the Registry of the

International Court of Justice on 4 May 2006, paras 910 and 1213; hereinafter,
Argentine Application.
10 Ibid., para. 12.
11 Ibid., para. 16.
12 The request was based on Article 41 of the ICJ Statute.
13 Request for provisional measures led by Argentina on 4 May 2006, at para.

16(a); hereinafter, Argentine Request.


14 Ibid., para. 16(c).
15 Ibid., para. 16(b) and (d).
The role of international conventions 41

proceedings took place in June 2006 and the Court delivered its decision on
13 July 2006. Whilst the Court accepted that it had prima facie jurisdiction
over the dispute, it refused to accede to the request for provisional mea-
sures. The Court held that there is nothing in the record to demonstrate
that the very decision by Uruguay to authorize the construction of the mills
poses an imminent threat of irreparable damage to the aquatic environment
of the River Uruguay or to the economic and social interests of the ripar-
ian inhabitants on the Argentine side of the river.16 Thus, the Court con-
cluded that the circumstances, as they now present themselves to the
Court, are not such as to require the exercise of its powers under Article 41
of the Statute to indicate provisional measures,17 although Argentina
retained the right to submit a fresh request if the facts were to change.18

3 INTERPRETATION AND APPLICATION OF THE


1975 STATUTE

The ICJ has jurisdiction in any dispute over the interpretation and appli-
cation of the 1975 Statute.19 The proceedings to date demonstrate that the
parties dier on their understanding of the Statute and therefore the Court
has an important role to play in clarifying the legal framework for the River
Uruguay.
The rules on treaty interpretation are primarily found in Articles 31 to 33
of the 1969 Vienna Convention on the Law of Treaties,20 many of which
have been recognised as reecting customary international law.21
In the rst place, a treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of a treaty in their
context and in light of its object and purpose.22 These factors are cumula-
tive and they cannot be considered in isolation. However, the text of a
treaty will often be ambiguous and an interpreter will have to look for
further indications of the intention of the parties. This can take a variety
of forms.
Sometimes, there will be other instruments adopted at the time when a
treaty was concluded that will indicate how the parties intended the treaty

16
Order of 13 July 2006, at para. 73.
17
Ibid., at para. 87.
18 Ibid., at para. 86.
19 1975 Statute, Article 60.
20 1969 Vienna Convention on the Law of Treaties, (1969) 8 ILM 698.
21 See e.g. Case Concerning Oil Platforms (Preliminary Objections), (1996) ICJ

Reports 812, at para. 23.


22 Vienna Convention on the Law of Treaties, Article 31(1).
42 International environmental law and conventions

to be interpreted. Such instruments shall be considered as the context of a


treaty for the purposes of interpretation.23 The rules on treaty interpreta-
tion also permit recourse to the subsequent agreements or practices of the
parties in implementing a treaty.24
Furthermore, a treaty shall be interpreted taking into account other
rules of international law applicable in the relations between the parties.25
This rule has been described as a constitutional norm within the inter-
national legal system26 which promotes the systemic integration27 of a
treaty so that a treaty is not read in clinical isolation from other rules of
international law.28 In order to fall within Article 31(3)(c) of the Vienna
Convention on the Law of Treaties, a rule of international law must rst of
all be applicable in relations between the parties. In other words, it must be
binding on all the parties to the treaty.29 This may cause problems for a mul-
tilateral treaty, with many contracting parties, but the threshold is much
easier to meet for a bilateral treaty such as the 1975 Statute.
These rules on treaty interpretation also recognise that the meaning of a
treaty is not necessarily xed at the time of its conclusion.30 An evolution-
ary approach to interpretation is increasingly adopted by international
courts and tribunals.31 This approach is particularly pertinent in the case of
environmental protection.32
The 1975 Statute was progressive in its approach to the environment. It
includes substantive provisions on the prevention of pollution and the pro-
tection of the aquatic environment and its ecosystem.33 Nevertheless, inter-
national environmental law has ourished since 1975. In this period, an

23 Ibid., Article 31(2).


24 Ibid., Article 31(3)(a) and (b).
25 Vienna Convention on the Law of Treaties, Article 31(3)(c).
26 McLachlan (2005, p. 280).
27 Ibid.
28 See USGasoline, WTO Appellate Body Report, DS/WT2/AB/R, adopted

on 20 May 1996.
29 See ECBiotech, at para. 7.68. Available at http://www.wto.org/english/

tratop_e/dispu_e/cases_e/ds 293_e.htm. Accessed 16 July 2007. The Panel reasoned


that it is not apparent why a sovereign state would agree to a mandatory rule of
treaty interpretation which could have as a consequence that the interpretation of
a treaty to which that state is a party is aected by other rules of international law
which that state has decided not to accept; at para. 7.72. See also McLachlan
(2005); cf. French (2006, p. 306).
30 See Namibia Advisory Opinion, (1971) ICJ Reports 16, p. 31.
31 See Higgins (2006, p. 798).
32 See e.g. Iron Rhine Railway Arbitration, at para. 80. Available at

http://www.pca-cpa.org/showpage.asp?pag_id=1155. Accessed 16 August 2007.


33 See below.
The role of international conventions 43

astonishing number of treaties, declarations and other instruments have


been concluded on a variety of environmental issues.34 Some of these
instruments may help to inform the interpretation and application of the
1975 Statute. The following sections will consider the interpretation and
application of the Statute and how it interacts with other rules and princi-
ples of international law. In particular, it will consider how far it promotes
the systemic integration of the treaty with the wider framework of inter-
national environmental law.

4 COOPERATION AND CONSULTATION IN


INTERNATIONAL ENVIRONMENTAL LAW

The duty of cooperation is a fundamental principle of international law, in


particular in environmental matters.35 However, precisely what states must
do to full this duty of cooperation often depends on the particular cir-
cumstances of a case.36 One way in which states can give more detail to the
duty of cooperation is by concluding a treaty on the subject.37 A treaty
regulating a transboundary resource allows states, inter alia, to create insti-
tutional mechanisms through which cooperation and consultation can take
place. It also allows states to specify the procedures which they should
follow in taking action in relation to a transboundary resource prior to a
dispute arising. It thus promotes legal certainty.
The 1975 Statute on the River Uruguay is an illustration. The Statute
creates the Administrative Commission on the River Uruguay as the prin-
cipal mechanism for cooperation between Argentina and Uruguay
concerning the uses of the River Uruguay.38 This intergovernmental
organisation39 is composed of ten commissioners, ve from each

34 For an overview, see Sands (2007).


35 See e.g. Case Concerning the MOX Plant (Provisional Measures), ITLOS
Case No. 10, Order of 3 December 2001, at para 82.
36 See e.g. the dicta of the Permanent Court of International Justice in

the Mavrommatis Palestinian Concessions Case, PCIJ Ser. A, No. 2, 1924, at


p. 13.
37 For instance, the 1997 Convention on the Law of the Non-Navigational Uses

of International Watercourses provides in Article 3 that watercourse states may


enter into one or more agreements . . . which apply and adjust the provision of the
present convention to the characteristics and uses of a particular international
watercourse or part thereof.
38 Comisin Administradora del Ri Uruguay or CARU in Spanish.
39 Article 50 of the Statute provides that the Commission shall have legal

personality.
44 International environmental law and conventions

country.40 In its own words, the Commission is intended to serve as a


vehicle of cooperation and understanding between the two countries and
is the right place to consider and solve the many problems and issues
which would normally arise due to the sharing of a long water frontier
and to the joint managing of river resources.41
In addition, the Statute creates a special procedure which applies to pro-
posals to carry out projects which will potentially aect the rights of the
other party to the Statute. The Statute provides that if one party plans to
construct new channels, substantially modify or alter existing ones or carry
out any other works which are liable to aect navigation, the regime of the
river or the quality of its waters, it shall notify the Commission which shall
decide on a preliminary basis whether the plan might cause signicant
damage to the other Party.42 This procedure applies to a wide range of
activities which may aect the river. Once a notication has been made, the
notied party has 180 days in which to respond to the notication and to
communicate whether or not it objects to the plans.43 Where there is no
objection or no response within the prescribed period, the notifying party
may implement its plans,44 subject to a right of inspection by the other
party.45 If the other party does have objections, it must in turn notify the
proposing party through the Commission.46 Following such a notication,
the parties have 180 days in which to negotiate a settlement. Article 12 pro-
vides that should the parties fail to reach agreement within 180 days fol-
lowing the notication [by the aected state] the procedure in chapter XV
shall apply. Chapter XV contains only one article which provides that dis-
putes may be submitted to the ICJ for settlement.47
This procedure is at the centre of the dispute between Argentina and
Uruguay. In its application to the Court, Argentina alleged that Uruguay
had failed to notify or consult Argentina using the procedures set out in
Articles 7 to 12 of the 1975 Statute.48 In particular, Argentina alleges that

40 CARU, Integracin de CARU. Available at http://www.caru.org.uy/

integracion.html. Accessed 6 August 2007. The Presidency of the Commission


rotates between the two countries.
41 The River Uruguay Executive Commission, at p. 6. Available at www.

caru.org.uy/publicaciones/The-River-Uruguay-executive-commission-Uruguay-
Paysandu.pdf. Accessed 19 July 2007.
42 1975 Statute, Article 7.
43 Ibid., Article 8.
44 Ibid., Article 9.
45 Ibid., Article 10.
46 Ibid., Article 11.
47 Ibid., Article 60.
48 Argentine Application, para. 25(1)(b) and (c).
The role of international conventions 45

the Statute requires Uruguay to obtain the prior agreement of Argentina


before its proceeds with a project. Argentina characterises this as a no con-
struction obligation.49 In its oral arguments at the proceedings on provi-
sional measures, Argentina stressed that Uruguay has the obligation to
ensure that no works are carried out until either Argentina has expressed
no objection, or Argentina fails to respond to Uruguays notication, or the
Court has indicated the positive conditions under which Uruguay may
proceed to carry out the works.50 In other words, Uruguay is not permit-
ted to carry out any works until notication and subsequent procedures
have been performed.51 According to this argument, no works whatsoever
can take place until the procedures in the Statute have been exhausted.52
For its part, Uruguay argues that the interpretation suggested by
Argentina simply does not stand up when one analyses the text of the 1975
Statute. Uruguay says that the Statute is silent on whether the notifying
party could proceed with the construction of its project in the face of an
objection from the other party.53 Uruguay stated that while the programme
must undeniably be implemented in compliance with the obligations
incumbent upon Uruguay in terms of environmental protection, to make
its implementation conditional upon the prior consent of another State
albeit a neighbour and brother nation unless specied by a precise and
explicit treaty provision is unthinkable.54 It is the case of Uruguay that
such a provision is lacking from the 1975 Statute.
In sum, the parties disagree whether or not the notifying party must
suspend a project during the consultation period and during the process of
dispute settlement. They also disagree on how the Statute should be inter-
preted and its relationship with customary international law.
Argentina submits that the no construction obligation arises from the
precise wording of the Statute which derogates from customary international
law.55 Thus, according to Argentina, international law is not relevant to the
interpretation of the Statute. On the other hand, Uruguay argues that the
Statute must be interpreted in light of other principles of international law.56

49 Argentina, Thursday 8 June, CR 2006/46, p. 31, at para. 12. See also, paras

1315.
50 Argentina, Thursday 8 June, CR 2006/46, p. 32, at para. 15.
51 Ibid., p. 30, at para. 8.
52 See Argentina, Thursday 8 June, CR 2006/46, p. 28, at para. 3.
53 Uruguay, Friday 9 June, CR 2006/49, p. 20, at para. 11.
54 Uruguay, Friday 9 June, CR 2006/49, at p. 24, para. 20 (translation from

French). See also Uruguay, Thursday 8 June, CR 2006/47, at p. 34, para. 21.
55 Argentina, Friday 9 June, CR 2006/48, p. 17. See also Argentina, Thursday

8 June, CR 2006/46, at p. 36, para. 21.


56 Uruguay, Friday 9 June, CR 2006/49, at p. 23, para. 17.
46 International environmental law and conventions

In particular, it invokes the principle of permanent sovereignty of a state over


its natural resources, as included in a variety of international instruments.57
It has been seen that other rules of international law may be invoked in
the process of interpretation. In this case, however, the Statute is silent on
the issue, so that other rules may be of limited assistance in attributing a
meaning to the text of the Statute. Nevertheless, other rules of inter-
national law may still be relevant in construing the correct interpretation of
the Statute.
In the Lac Lanoux arbitration, Spain objected to the building of a hydro-
electricity scheme on Lac Lanoux in the Pyrenees. This was a recognised
transboundary resource which was governed by the 1866 Treaty of
Bayonne and associated agreements. Spain argued, inter alia, that under
the 1866 Treaty, works which were liable to aect the ow of transbound-
ary waters could not be carried out without the agreement of both Parties.
Central to the dispute was the interpretation and application of Article 11
of that Treaty which provided that when in one of the two States it is pro-
posed to construct works or to grant new concessions which might change
the course or the volume of a watercourse of which the lower or opposite
part is being used by the riparian owners of the other country, prior notice
will be given . . . so that, if they might threaten the rights of the riparian
owners of the adjoining sovereignty, a claim may be lodged in due time with
the competent authorities and thus the interests that may be involved on
both sides will be safeguarded.58 According to Spain, this provision gave
them a right of veto over the proposed project.59 Thus, Spain argued that
regardless of the positive or negative impacts of the French project, it was
in violation of the Treaty because it was unilaterally conceived.60 Spain
further alleged that its interpretation of the Treaty was supported by a rule
of customary international law of prior consent over shared resources.
However, the Tribunal could not nd evidence that such a rule existed.61
Nor in the opinion of the Tribunal could the text of the Treaty sustain the
interpretation that Spain had suggested. It held, if the contracting Parties
had wished to establish the necessity for prior agreement, they would not

57 Uruguay cites General Assembly Resolution 2995 (XXVII), Principle 2

of the 1992 Rio Declaration on the Environment and Development, Principle 21 of


the 1972 Stockholm Declaration on the Human Environment, Articles 17 and 19 of
the 1997 Convention on the Law of Non-navigational Uses of International
Watercourses; Uruguay, Friday 9 June, CR 2006/49, at p. 23, paras 1819 and 21.
58 Lac Lanoux Arbitration Award, 24 ILR 101, at p. 103.
59 Ibid., at p. 115.
60 Ibid., p. 116.
61 Ibid., p. 130.
The role of international conventions 47

have conned themselves to mentioning in Article 11 only the obligation to


give notice.62 The Tribunal continued, to admit that jurisdiction in a
certain eld can no longer be exercised except on the condition of, or by
way of, an agreement between the two States, is to place an essential restric-
tion on the sovereignty of a State and such restriction could only be admit-
ted if there were clear and convincing evidence.63
In that case, the principle of sovereignty appears to create a presumption
that a state may proceed with a project on its territory without the consent
of any other state. In other words, it is not possible to read in a restriction
of the fundamental rights of states without an explicit reference in the text
or other unequivocal evidence to that eect. The operation of such a pre-
sumption in the pulp mills litigation means that Argentina must present
clear and convincing evidence that the 1975 Statute prevents Uruguay from
proceeding with a project pending the conclusion of dispute settlement.

5 PROVISION OF INFORMATION AND


ENVIRONMENTAL IMPACT ASSESSMENT

A related claim of Argentina is that Uruguay has failed to provide adequate


information on the proposed projects. The parties also disagree whether an
adequate environmental impact assessment has been conducted. Uruguay
refers to a series of studies, including those undertaken by the International
Finance Corporation,64 which it claims cumulatively show that there is
no serious risk of signicant harm to the River Uruguay. According to
Argentina, these projects environmental impact assessments were so
poorly prepared and so inadequate that they had to be revised on numer-
ous occasions, and they still have not been completed.65 It asserts that the
information is not adequate for the purposes of the Statute.
The 1975 Statute itself does not require an environmental impact assess-
ment. Uruguay noted in its submissions to the Court that the obligation
envisaged here is not to carry out an environmental impact assessment, but
to provide the other Party with enough information to enable it to do its
own assessment.66 However, in practice, an assessment must be conducted
by Uruguay if it is going to have the information to supply to Argentina. It
has been noted by one leading text on international environmental law that

62 Ibid., p. 131.
63 Ibid., p. 127.
64 See below.
65 Argentina, Friday 9 June, CR 2006/48, at pp. 1011.
66 Uruguay, Thursday 8 June, CR 2006/47, at p. 25, para. 25.
48 International environmental law and conventions

notication, consultation and negotiation must take place on the basis of


adequate information and without the benet of an [environmental impact
assessment], the duty to notify and consult other states in cases of trans-
boundary risk will in many cases be meaningless.67 Thus, an obligation to
conduct an environmental impact assessment can be implied from the text
of Article 7 of the Statute.
It is the role of the Court to clarify precisely what type of information
should be transmitted under Article 7 of the Statute and whether Uruguay
has satised this condition. All the Statute says is that the notication shall
describe the main aspects of the work and shall include any other tech-
nical data that will enable the notied party to assess the probable impact
of such works.68 As the Statute is itself ambiguous, an interpreter may
again have to look elsewhere for evidence of the intentions of the parties.
Other sources of international law may in this context help to provide an
answer to this question.69 There are many international instruments which
deal with environmental impact assessment and information exchange. Yet,
there are limits on which instruments it is appropriate to consult in this case
under the rules of treaty interpretation.
The most express international treaty on environmental impact assess-
ment is the 1991 Convention on Environmental Impact in a Transboundary
Context.70 However, this treaty is not binding on Argentina or Uruguay.
Indeed, it was concluded by the Economic Commission for Europe and it
is only open for participation by members of that organisation.71 Thus, it
does not qualify as a relevant rule of international law applicable in the
relations between the parties for the purposes of interpretation.
The 1987 UNEP Goals and Principles of Environmental Impact
Assessment72 are an attempt to formulate global standards in this area.
However, this instrument is non-binding and it is formulated in such a way
that it is unlikely to have inuenced the development of customary inter-
national law on the subject. The principles are largely drafted in terms of
should rather than shall, suggesting that they were not intended to be
legally binding.73 Again this conclusion prevents this instrument from
being invoked for the purposes of interpretation.

67 Birnie and Boyle (2002, p. 127, p. 131).


68 1975 Statute, Article 7.
69 See Uruguay, Thursday 8 June, CR 2006/49, at p. 18, para. 26.
70 Reproduced in (1991) 30 ILM 802.
71 1991 Convention on Environmental Impact Assessment in a Transboundary

Context, Articles 1617.


72 Endorsed by General Assembly Resolution 42/184.
73 For a discussion of customary international law of environmental impact

assessment, see Birnie and Boyle (2002, pp. 1305; Knox (2002)).
The role of international conventions 49

There are other treaties and instruments which may be more useful for
the purposes of interpretation. For instance, the 1992 Convention on
Biological Diversity provides that each Contracting Party, as far as pos-
sible and as appropriate, shall introduce appropriate procedures requiring
environmental impact assessment.74 The Conference of the Parties to the
Convention has adopted Guidelines on how such environmental impact
assessments should be conducted in order to integrate biodiversity consid-
erations into an assessment scheme.75 Both Argentina and Uruguay are
contracting parties to the Convention so it qualies as an applicable rule of
international law for the purposes of Article 31(3)(c) of the Vienna
Convention on the Law of Treaties. The Guidelines, although not binding,
may provide further insight into how the Convention on Biological
Diversity itself should be interpreted.
The duty to conduct an environmental impact assessment is also found
in the 2001 ILC Draft Articles on the Prevention of Transboundary
Harm.76 Article 7 provides that a state must conduct an assessment of pos-
sible transboundary harm from an activity, whilst Article 8 requires
notication of any identied risk, as well as the provision of the available
technical and all other relevant information on which the assessment is
based. The Draft Articles on the Prevention of Transboundary Harm and
their commentaries may also provide evidence of the type of information
that states are required to transmit under customary international law.77 To
this extent, they may qualify as relevant rules of international law applic-
able in the relations between the parties.
Yet, interpretation should not be used as a pretext for rewriting the text
of a treaty78 or ascribing intentions to the parties that they did not possess.
The invocation of other rules of international law must be treated with care
as other instruments are often adopted in a dierent context. The
International Tribunal for the Law of the Sea has made clear that the
application of international law rules on interpretation of treaties to iden-
tical or similar provisions of dierent treaties may not yield the same
results, having regard to, inter alia, dierences in the respective contexts,

74 Convention on Biological Diversity, Article 14(1)(a).


75 COP Decision VI/7.
76 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, Ocial Records of the General Assembly, Fifty-sixth Session,


Supplement No. 10, UN Document A/56/10. Hereinafter, ILC Draft Articles.
77 ILC Draft Articles, Article 8 and commentary.
78 See the separate opinion of Judge Bedjaoui in the Case Concerning the

Gabcikovo-Nagymaros Project where he stressed that the interpretation of a treaty


should not be confused with its revision; at paras 1215.
50 International environmental law and conventions

objects and purposes, subsequent practice of parties and travaux prpara-


toires.79 In other words, the text of one treaty may not have the same
meaning as similar wording in another treaty. How does an interpreter
decide if this is the case? Although Article 31(3)(c) provides that an inter-
preter shall take into account rules of international law applicable in the
relations between the parties, it only applies to those rules which are rele-
vant. This threshold test may have the eect of excluding other rules of
international law that are otherwise applicable from the remit of the Court.
Relevancy can be assessed by comparing the context and object and
purpose of the two treaties.80

6 SUBSTANTIVE POLLUTION STANDARDS

It is not only the procedural obligations over which Argentina and Uruguay
disagree in this case. They are also in complete disagreement over the
impact that the pulp mills will have on the River Uruguay and what mea-
sures should be taken to minimise any threat to the aquatic environment.
For its part, Uruguay alleges that the operation of the mills will have a
minimal impact on water quality, or on the ecology of the riparian
area .81 On the other hand, Argentina argues that the mills will cause
signicant pollution to the environment. It argues, inter alia, that the river
could be contaminated with up to 1,500 million cubic metres of polluted
water.82 According to Argentina, the euents emitted by the plants and
dumped in the River Uruguay will contain several dangerous substances,
including mercury, phosphorus, furans, dioxins, and cyanide.83 This chem-
ical waste, it is alleged, could have negative eects on animal and human
health.84 In its application to the Court, Argentina asked the Court to nd
that Uruguay had failed to comply with its substantive obligations under
the Statute to protect and preserve the aquatic environment and, in par-
ticular, to prevent its pollution.85

79 MOX Plant Case (Provisional Measures), at para. 51. See also Dispute

Concerning Article 9 of the OSPAR Convention (2003) 42 ILM 118, at paras


1413.
80 See below.
81 Uruguay, Thursday 8 June, CR 2006/47, p. 29, at para. 39.
82 Argentina, Thursday 8 June, CR 2006/46, p. 25, at para. 16.
83 Ibid., at para. 17.
84 Ibid., at paras. 1819. Argentina referred to studies by the Commission

for Environmental Co-operation in North America and the World Health


Organization to support its arguments.
85 1975 Statute, Article 40.
The role of international conventions 51

First of all, it is important to note that although the proposed pulp mill
may cause various types of pollution, there are limits on the claims that
Argentina may bring under the 1975 Statute. The Statute is not compre-
hensive in its coverage of transboundary pollution. Pollution is dened in
the Statute as the direct or indirect introduction by man into the aquatic
environment of substances or energy which have harmful eects.86 Thus it
does not cover all forms of pollution, such as air pollution.87 Whether or
not these other forms of transboundary pollution are in violation of inter-
national law, they do not fall within the scope of the Statute and any claims
would fall outside of the jurisdiction of the Court.
The principal provisions on the prevention of pollution are found in
Chapter X of the 1975 Statute. Article 41 contains a general duty to protect
and preserve the aquatic environment.88 Article 41 also contains a stabilis-
ation clause, prohibiting the parties from lowering their standards of envi-
ronmental protection. Articles 42 and 43 deal with liability and jurisdiction
for pollution oences. It also requires states to cooperate in the establish-
ment of pollution standards.89
Of these provisions, perhaps the most signicant is Article 41 which
requires the Parties to protect and preserve the aquatic environment and,
in particular, to prevent its pollution, by prescribing appropriate rules and
measures in accordance with applicable international agreements and in
keeping, where relevant, with the guidelines and recommendations of inter-
national technical bodies.90
It can be seen from this provision that the Statute itself does not prescribe
detailed rules and regulations on the prevention of pollution. Instead, it
incorporates applicable rules from other international agreements.
Therefore, it is necessary to decide which rules and regulations are incor-
porated by Article 41.
First, rules and regulations may be prescribed by the Administrative
Commission for the River Uruguay. Article 56 of the Statute empowers the
Commission to draw up rules governing the prevention of pollution on the
River Uruguay and to carry out scientic studies and research which
includes surveying the water quality of the river. The Commission has in
fact prescribed water quality standards and maximum permitted levels of

86 Ibid., Article 40. Emphasis added.


87 However, see the claim of Argentina; Argentina, Thursday 8 June, CR
2006/46, at p. 24, paras 1315. Cf. Uruguay, Thursday 8 June, CR 2006/47, at p. 21.
88 1975 Statute, Article 41(a).
89 See also Articles 35 and 36 which cover broader obligations to protect the

environment and ecosystems.


90 Ibid., Article 41(a).
52 International environmental law and conventions

certain substances including cyanide, mercury, arsenic, DDT and PCBs.91


In this sense, the Statute resembles a so-called framework convention
which permits the law to evolve over time through the ongoing cooperation
of the states involved.92
Secondly, the Statute may also incorporate standards from other applic-
able international agreements on the protection of the aquatic environ-
ment. Such a rule of reference resembles certain provisions in the 1982
United Nations Convention on the Law of the Sea. For instance, Article 42
of that Convention allows state bordering straits to adopt laws and regula-
tions relating to the prevention, reduction and control of pollution, by
giving eect to applicable international regulations regarding the discharge
of oil, oily wastes and other noxious substances in the strait.93 This provi-
sion creates a benchmark against which to assess the national laws of a state
so that states bordering straits are not free to adopt regulations that are
substantially dierent from or more stringent than the applicable inter-
national standard.94 In other words, it creates a maximum level of protec-
tion that can be prescribed by strait states.
In contrast, the rule of reference in Article 41 of the 1975 Statute would
appear to create a minimum level of protection so that states must pre-
scribe measures that are at least as eective as the applicable international
agreements.95 The wording of Article 41 does not appear to prevent a state
from prescribing higher standards if it wishes. Indeed, Article 41(b)
prohibits states from lowering their technical requirements for water
pollution.
The principal question is what are the applicable international agree-
ments for the purposes of Article 41? The phrase applicable international
agreement suggests that the agreements must be binding on both of the
parties. In other words, there is a requirement of reciprocity if an agreement
is to be incorporated by the Statute and it will not incorporate a rule that
is applicable to only one of the parties.

91 See Uruguay, Friday 9 June, CR 2006/49, at p. 13, para. 9. These standards

are contained in the so-called Digest.


92 See e.g. Birnie and Boyle (2002, p. 14).
93 UN Convention on the Law of the Sea, Article 42(1)(b). The term applica-

ble international regulations is found in several provisions of the UN Convention


on the Law of the Sea; see e.g. Van Reenan (1981) at pp. 1213. See also the dis-
cussion of the Tribunal in the Dispute concerning Article 9 of the OSPAR
Convention, at paras 93105.
94 Nordquist, Nandan and Rosenne (1993, p. 375).
95 Compare Article 210 of the UN Convention on the Law of the Sea. See

Redgewell (2006, pp. 18091).


The role of international conventions 53

It was argued on behalf of Argentina that the Statute has the eect of
importing detailed obligations under more than a dozen international
arrangement and treaties into the scheme.96 In particular, it cites the
2001 Convention on Persistent Organic Pollutants.97 The so-called POPs
Convention was concluded in 2001 with the aim of protecting human health
and the environment from persistent organic pollutants.98 The Convention
entered into force on 17 May 2004 and both Argentina and Chile became
parties in January 2005. It creates detailed obligations on parties to eliminate,
restrict or reduce a variety of chemicals contained in three annexes to the
treaty. PCBs which can be used in the pulping process are included in Annex
C. According to Article 5 of the Convention, each Party must reduce the
total releases of chemicals listed in Annex C with the goal of continuing min-
imisation and, where feasible, ultimate elimination.99 As this treaty is binding
on the parties, there is no dispute that it is an applicable international agree-
ment. However, the treaty must also create specic rules or standards that are
capable of being incorporated into the 1975 Statute. This is a question of
interpretation. Where another agreement is applicable and it includes specic
standards, it may be used by the Court to determine whether or not a party
has complied with its obligations under the 1975 Statute.
Other rules and principles may be also used to interpret the substantive
provisions of the 1975 Statute. One example is determining what is neces-
sary for the purposes of managing the river and associated resources under
Article 35 of the 1975 Statute.
A good comparison can be made with the approach of the
International Court of Justice in the Oil Platforms case. In this case, Iran
brought a claim against the United States under the 1955 Treaty of
Amity, Economic Relations and Consular Rights, alleging a violation of
Article X. The United States argued that Article XX(1)(d) of the Treaty
allowed it to take measures which were necessary to protect its essential
security interests. In interpreting this latter provision, the Court held
that it had to consider the law on the conditions of legitimate self-defence
under international law.100 The Court cited Article 31(3)(c) of the
Vienna Convention on the Law of Treaties, concluding that the
application of the relevant rules of international law relating to this

96 Argentina, Thursday 8 June, CR 2006/46, at p. 33.


97 Ibid., at pp. 3335, para. 18.
98 POPs Convention, Article 1.
99 Ibid., Article 5. See the arguments of Argentina and Uruguay: Argentina,

Thursday 8 June, CR 2006/46, at p. 34; Uruguay, Thursday 8 June, CR 2006/47, at


p. 22, para. 37; Uruguay, Friday 9 June, CR 2006/49, at p. 15.
100 Oil Platforms case (2003) ICJ Reports 161, at para. 40.
54 International environmental law and conventions

question . . . forms an integral part of the task of interpretation


entrusted to the Court.101
Similar reasoning can be applied to Article 35 of the Statute so that the
requirements of other international treaties may shed light on what is nec-
essary under the bilateral treaty between Argentina and Uruguay.102
However, the constraints described above also apply. Indeed, in the Oil
Platforms case, Judge Higgins criticised the Court for failing to take into
account the context of the treaty it was interpreting: The Court reads
[Article XX(1)(d)] as incorporating the totality of the substantive inter-
national law . . . on the use of force. But this is to ignore that Article 31,
paragraph 3 [of the Vienna Convention on the Law of Treaties] requires the
context to be taken into account: and the context is clearly that of an
economic and commercial treaty.103 It follows that the Court must be
careful in deciding which applicable rules are relevant for the purposes of
interpretation, taking into account the context of the treaty and other indi-
cations of the intentions of the parties.

7 ACHIEVING AN OPTIMUM AND RATIONAL


UTILISATION

The overall objective of the 1975 Statute is the optimum and rational uti-
lization of the River Uruguay.104 Aside from the obligation to consult, the
Statute does not specify how the parties should achieve an optimum and
rational utilisation or what factors they should take into account for this
purpose. Seen in the context of the Statute as a whole, the achievement of
this aim should include considerations of economic development and
environmental protection. The Statute implies that the parties must seek a
balance of interests. Yet, there is no single way in which this balance is to
be achieved.
Balancing of interests is apparent throughout international environ-
mental law. It is found in particular in the 2001 ILC Draft Articles on the
Prevention of Transboundary Harm. Article 9 provides in the rst place

101Ibid., at para. 41.


102Argentina also appears to invoke the precautionary principle to interpret
what measures Uruguay must take under the Statute; see Argentina, Friday 9 June,
CR 2006/48, at p. 19, para. 14; cf. Uruguay, Friday 9 June, CR 2006/49, at p. 15,
para. 14.
103 The separate opinion of Judge Higgins in the Oil Platforms Case, at para. 46.

See also the criticism of Judge Buergenthal.


104 1975 Statute, Article 1.
The role of international conventions 55

that the state [proposing a project] shall seek solutions based on an equi-
table balance of interests. Article 10 of the Draft Articles suggest a number
of factors that should be taken into account in achieving an equitable
balance of interests, including the degree of risk and the importance of the
activity.105 However, if consultations fail to produce an agreed solution,
Article 9 continues to provide that the state of origin shall nevertheless
take into account the interests of the State likely to be aected in case it
decides to authorise the activity to be pursued. Similar provisions are
found in the 1997 Convention on the Law of the Non-navigational Uses of
International Watercourses106 which requires watercourse states to utilize
an international watercourse in an equitable and reasonable manner . . .
with a view to obtaining optimal and sustainable utilization thereof . . .
taking into account the interests of the watercourse states concerned.107
The commentary to this provision says that it implies attaining maximum
possible benets for all watercourse states and achieving the greatest pos-
sible satisfaction for their needs, while minimizing the detriment to, or
unmet needs of, each.108
Although a balance of interests can only be attained by the parties them-
selves, the Court may play a facilitative role109 in assisting the parties to
resolve the dispute amicably, by clarifying the rules and principles that are
applicable to a particular dispute. Thus, the Court species the legal frame-
work within which the parties must negotiate. In the Gabcikovo-Nagymaros
case, the Court ruled that Hungary and Slovakia were still bound by the
1977 Treaty and they were to negotiate a solution that takes account of the
objectives of the Treaty, . . . as well as the norms of international environ-
mental law and the principles of the law of international watercourses.110
Similarly, in the Icelandic Fisheries case, the Court held that the parties
must negotiate an equitable apportionment of the shing resources taking
into account each others rights and the need to adopt shery conservation
measures for the waters in question.111 Therefore, the Court can indicate
which other international instruments should be taken into account in their
consultations.

105 The list in Article 10 is not exhaustive.


106 Adopted by the General Assembly on 21 May 1997 in Resolution 51/229,
annex; hereinafter, 1997 Watercourses Convention.
107 1997 Watercourses Convention, Article 5.
108 ILC Commentary on Article 5 of its 1994 Draft Articles on the law of the

non-navigational uses of international watercourses, which appears in Yearbook of


the International Law Commission, 1994, vol. II, part two.
109 See Johnston (1999, p. 38).
110 Case Concerning the Gabcikovo-Nagymaros Project, at para. 140.
111 Icelandic Fisheries Cases, at paras 7279.
56 International environmental law and conventions

8 THE MULTI-FACETED NATURE OF


INTERNATIONAL DISPUTES

As noted above, the 1975 Statute does not deal with all types of pollution.
Nor is it the only treaty between Argentina and Uruguay that is concerned
with environmental protection. However, the nature of international
dispute settlement means that not all aspects of a dispute may be heard by
a single court or tribunal. Whilst other instruments may be used for inter-
pretative purposes, the jurisdiction of the Court is strictly limited by its
compromissory clause. The compartmentalised nature of dispute settle-
ment has been described by one author in a dierent context as salami-
slicing so that some aspects of a dispute will go to adjudication in one
tribunal, other aspects may go to a dierent tribunal, whilst others aspects
may not be justiciable at all.112
There are several other treaties, bilateral and multilateral, and other
instruments which touch on this subject, some of which will have their own
dispute settlement mechanisms.
The World Bank and related institutions are also involved in the dispute
because Uruguay applied for a loan for both pulp mill projects through the
International Finance Corporation and the Multilateral Investment
Guarantee Agency. The involvement of the World Bank means that there
is an additional mechanism for scrutinising the environmental impact of
the projects, as the institution has its own environmental and social poli-
cies on which it assesses loan applications.113 This involves an environ-
mental impact assessment procedure. In the case of the pulp mills on the
River Uruguay, the Bank ordered a cumulative environmental impact
assessment of both projects and an expert review of the ndings before it
approved the loans.114
Industrial activities liable to cause signicant pollution may also raise
human rights issues. Both Argentina and Uruguay are party to the Inter-
American Convention on Human Rights. Such regional human rights
instruments have been invoked in the past to prevent pollution where indi-
viduals have particularly suered.115

112 Boyle (1997, pp. 4142). Another commentator describes it as clustering;

see Romano (2007, pp. 10471052).


113 International Finance Corporations Policy on Social and Environmental

Sustainability, 30 April 2006.


114 See www.ifc.org/ifcext/lac.nsf/content/uruguay_pulp_mills. Accessed 17

July 2007.
115 See e.g. Hatton and Others v the United Kingdom, European Court of

Human Rights (2003) 37 EHRR 28; Guerra v Itlay, European Court of Human
The role of international conventions 57

Another instrument pertinent to the dispute is the OECD Guidelines for


Multinational Enterprises. This is a non-binding instrument addressed to
both governments and companies promoting positive business practices in
the elds of, inter alia, industrial relations, human rights, and environmen-
tal protection.116 Although voluntary, participating governments are
required to set up National Contact Points to promote the Guidelines and
to contribute to the resolution of issues that arise relating to the imple-
mentation of the Guidelines in specic instances.117 Where an allegation
of non-compliance with the Guidelines is made, the National Contact
Point may oer its good oces. If the dispute is not solved in this manner,
the National Contact Point may make an assessment of the allegation and
make recommendations on the implementation of the Guidelines. The rec-
ommendations are not binding, but they do provide a mechanism of inde-
pendent scrutiny. In the context of the pulp mills dispute, the Center for
Human Rights and the Environment made a complaint to the Finnish
National Contact Point about the construction of the pulp mill by Botnia,
a Finnish company. This entailed further scrutiny of the facts of the dispute
by the Finnish Government. However, following an investigation, the
Finnish government announced in December 2006 that the company had
complied with the OECD Guidelines.118
It is not only other environmental and human rights instruments that
may be relevant to the pulp mills dispute. The dispute also has signicant
economic aspects which are the subject of separate treaty obligations and
dispute settlement mechanisms.
The economic relationship between Argentina and Uruguay is rst and
foremost governed by MERCOSUR, that is the 1991 Treaty of Asuncion
and associated agreements which together anticipate a common market for
the four South American states involved.119 The 2002 Protocol of Olivos
creates a two-tier dispute settlement system, allowing disputes to be sub-
mitted rst to an ad hoc Tribunal and then to an Appeal Tribunal.

Rights (1998) 26 EHRR 357; Lopez Ostra v Spain, European Court of Human
Rights (1994) 20 EHRR 277; Social and Economic Rights Action Centre v Nigeria,
African Commission of Human Rights (2003) 10 IHRR 282.
116 See http://www.oecd.org/topic/0,3373,en_2649_34889_1_1_1_1_37439,00.

html. Accessed 17 July 2007. See also the United Nations Global Compact and the
Ten Principles, www.unglobalcompact.org/aboutthegc/thetenprinciples/index.
html. Accessed 17 July 2007.
117 Decision of the OECD Council, June 2000.
118 The Ministry of Trade and Industrys decision on Botnia SA/Metsa-Botnia

Oys pulp mill project; Press Release 282/2006, 22 December 2006.


119 There is not yet a common market, however the treaties do provide for, inter

alia, free trade in goods and services; see Ferrari (2000).


58 International environmental law and conventions

At the international level, trade is subject to the disciplines of the World


Trade Organization, including the GATT, the GATS and the TRIPS
Agreement.120 The Agreement establishing the World Trade Organization
includes a Dispute Settlement Understanding which provides for the com-
pulsory adjudication of disputes arising under the WTO Agreements.
This brief summary of various international instruments demonstrates
the multi-faceted nature of international law and the dispute settlement
process. Fragmentation of international law is a well-known phenome-
non.121 It largely comes about as a consequence of the increasing special-
isation of international law where norms are developed and adopted in
separate and often autonomous institutions. This can lead to conict of
substantive norms.122 However, it is not only treaty rights and obligations
that overlap. Another feature of fragmentation is the proliferation of
courts and tribunals with overlapping jurisdiction.123
The issue of overlapping jurisdiction was raised in the pulp mills litiga-
tion when Uruguay requested provisional measures from the International
Court of Justice in November 2006 to stop the blockade of a bridge con-
necting the two countries. The blockade began in protest at the building of
the pulp mills and it intensied following the unsuccessful request for pro-
visional measures by Argentina in July 2006. Aimed to disrupt the tourist
season in Uruguay, the blockade would, according to Uruguay, deprive
it of hundreds of millions of dollars in foregone trade and tourism.124
Uruguay alleged that Argentina was internationally responsible for the
actions of its citizens because of its allowance of the blockades, its acqui-
escence in them, and its failure to act against them.125 Uruguay requested
that Argentina be ordered to take all reasonable and appropriate steps at
its disposal to prevent or end the interruption of transit between Uruguay
and Argentina, including the blockading of bridges and roads between the
two states, as well as abstaining from any measure that might aggravate,
extend or make more dicult the settlement of this dispute and from any
other measure that might prejudice the rights of Uruguay in dispute before
the Court.126

120 The Results of the Uruguay Round of the World Trade Organization (1999).
121 See Koskeniemmi (2006).
122 Ibid.; see also Pauwelyn (2003).
123 This issue was not addressed by the International Law Commission in its

study on the Fragmentation of International Law; Koskeniemmi (2006, at para.


13). However, see Shany (2003); Charney (1998).
124 Request for the indication of provisional measures led by Uruguay on

30 November 2006, at para. 7. Hereinafter, Uruguayan Request.


125 Ibid., at para. 8.
126 Ibid., at para. 28.
The role of international conventions 59

The rst issue the Court had to decide was whether the application fell
within the scope of its jurisdiction. The Statute has no provisions on
freedom of transit or any other rights or duties of an economic character.
Thus, Argentina argued that the application for provisional measures was
out with the competence of the Court and there was no connection with
the substantive dispute that was before the Court.127 However, the Court
held that the right of Uruguay to continue the construction of the plants
in conformity with the Statute of the River Uruguay, pending a nal deci-
sion of the Court, could be protected by way of an order for provisional
measures.128 It followed that there was a sucient connection with the
merits of the case to seise the Court of the request.
Argentina also argued that the Court should not consider the applica-
tion because a similar case had been tried before another tribunal. Uruguay
had previously brought a claim to an ad hoc MERCOSUR Tribunal for a
violation of its rights under the MERCOSUR Treaty, alleging that the
failure of Argentina to stop the protesters blocking the roads had caused
signicant damage relating to the export and import trade, tourism, and
transportation of land passengers and merchandise.129 In that litigation,
Uruguay cited, inter alia, Articles 1 and 5 of the Treaty of Asuncion and
Articles II, III, and IV of the Protocol of Montevideo, explicitly providing
for free movement of goods and services. The MERCOSUR Tribunal deliv-
ered its judgment in September 2006, nding that Argentina had failed to
guarantee the free trac of goods and services between the territories of
their respective countries. However, the decision of the Tribunal was not
prospective and it did not seek to make determinations about the future
conduct of Argentina. Uruguay thus argued in its request for provisional
measures that it was left with no alternative to make a request to the
International Court of Justice for provisional measures when the protests
continued after the award of the MERCOSUR Tribunal.130
In opposition, Argentina argued that Uruguay had chosen to pursue
their complaint through the MERCOSUR dispute settlement mechanisms
and as a consequence, the principle of res judicata prevented the Court
from hearing the request.131 The res judicata rule operates so that a nal

127 Order of 23 January 2007, at para. 20.


128 Ibid., at para. 29.
129 See Laudo No. 2/2006, 6 September 2006, at para. 21. Available at

http://www.mercosur.int/msweb/portal%20intermediario/es/index.htm. Accessed
17 July 2007. An English translation is found in Annex II of the Uruguayan
Request.
130 See Uruguay, Monday 18 December, CR 2006/54, at p. 18, paras 2 and 3.

See also p. 24, para. 15.


131 Order of 23 January 2007, at para. 21.
60 International environmental law and conventions

decision rendered in one set of proceedings bars any subsequent court or


tribunal from exercising jurisdiction over the same dispute.132 In order for
the principle of res judicata to apply, the claim must involve the same
parties and the same issues.133 This is vital in determining the applicability
of the principle, as multiple proceedings relating to the same facts, but
involving distinct legal claims under international law, do not necessarily
meet the same issues standard.134 It is for this reason that the argument
of Argentina was unsuccessful. The Court held that the rights invoked by
Uruguay in the MERCOSUR proceedings were dierent from those it was
seeking to protect in the current application and the principle of res judi-
cata did not apply.135
The multi-faceted nature of a dispute such as that in the pulp mills liti-
gation is a product of the fundamentally fragmented nature of inter-
national law. Some commentators suggest that there is a danger that
fragmentation will lead to conicting judgments rendered by courts and
tribunals,136 although this threat may be exaggerated.137 Principles such as
res judicata, litispendence and comity138 may aid in the alleviation of these
problems. Ultimately, however, it is the nature of the international legal
system that dierent claims in the same dispute may have to be brought in
dierent fora.

9 CONCLUSION

This analysis has sought to focus on the interrelationship of the 1975


Statute with other rules of international law, without oering any strong
opinions on the substantive outcome of the case. The Case Concerning the
Pulp Mills on the River Uruguay is still being litigated and it is unlikely
that a judgment of the ICJ will be handed down before 2009.139

132Shany (2003, p. 23).


133Ibid., p. 24. See also Scobbie (1999).
134 Shany (2003, p. 26); see also Lowe (1999).
135 Order of 23 January 2007, at para. 30. Ultimately, however, the Court did

not order the measures requested by Uruguay. It did, however, reiterate its call for
the Parties to full their obligations under international law and to refrain from
any actions which might render more dicult the resolution of the present
dispute.
136 E.g. Guillaume (1995).
137 See Higgins (2003, pp. 1820).
138 See the MOX Plant Case, Order 24 June 2003.
139 In its Order of 13 July 2006, the Court xed the dates for the ling of

written submissions. The memorial of Argentina was due in January 2007 and
The role of international conventions 61

Nevertheless, the pulp mills litigation raises several interesting questions


about the nature of international dispute settlement and the fragmentation
of international law.
This analysis has illustrated that a variety of rules and principles of inter-
national law may be taken into account in the interpretation and applica-
tion of the 1975 Statute. Some of these rules and principles are directly
incorporated by the Statute itself, whilst others are relevant for interpreta-
tive purposes. In both situations, the pulp mills litigation raises legal issues
that go beyond a bilateral treaty on a transboundary resource. At the same
time, the constraints on invoking other instruments for the purposes of
interpretation have also been pointed out. Interpretation is not a carte
blanche to incorporate the text of other treaties into the 1975 Statute. It has
been suggested that the context of a treaty is a controlling factor in decid-
ing which other rules of international law are relevant. Thus, whilst Article
31(3)(c) of the Vienna Convention on the Law of Treaties seeks to promote
the systemic integration and the harmonisation of rules of international
law,140 its ability to do so is limited by the fact that treaties are often devel-
oped in very dierent contexts.
Ultimately, the decentralised nature of international law means that a
single dispute may be submitted to a variety of dispute settlement mecha-
nisms under dierent instruments. Actual conicts of jurisdiction are rare.
Nevertheless, multiple litigation may well make it more dicult to settle the
dispute. An integrated solution to a dispute, taking into account all of the
relevant and applicable rules of international law, is only likely to be
achieved by the parties themselves through diplomacy.

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the counter-memorial of Uruguay was due in July 2007. Article 45 of the Rules
of Court allows the Court to authorise a Reply and Rejoinder if necessary. A
subsequent Order of the Court delivered on 14 September 2007 authorized
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respectively.
140 McLachlan (2005, p. 318).
62 International environmental law and conventions

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4. Transboundary vessel-source marine
pollution international legal
framework and its application to
China
Wang Hui

1 INTRODUCTION

Two-thirds of the earths surface consists of water and the oceans form the
very foundation of life itself. Nowadays, 95 per cent of the worlds trade by
weight is carried by sea. In view of the crucial importance of the oceans to
life, the pollution of the marine environment and its eects require serious
attention.
Marine pollution may come from various sources. The major source is
acknowledged to be from land-based sources, such as coastal activities.
Another main source is marine shipping or vessel-related activities, such as
tankers carrying oil or other chemicals by sea and other vessels carrying
hazardous and noxious cargoes. Ocean shipping is nowadays frequently
carried out between dierent states.1 Consequently, when pollution comes
from shipping-related activities or vessel-related sources, it often occurs
that the pollution incident may be generated from inside one country or on
the high seas where no country may claim jurisdiction, but it can inict
adverse eects in the territory or jurisdiction of another state.2 Hence,
marine pollution caused by vessel-based activities is often transboundary
in nature. Moreover, the common practice today is that the ship is registered
in one country, while the crew is multinational, the ship is managed by an
operating company registered in another country, and the benecial owner
is in yet another country.3 When pollution occurs in such a situation, the

1Molenaar (1998, p. 19).


2For a denition of transboundary pollution damage, see Xue
(2003, p. 3).
3 Kiehne (1996, p. 218).

64
International legal framework 65

multinational elements may establish the transboundary nature of the issue


in the broad sense that more than one jurisdiction will be involved.
Given the transboundary nature of vessel-source marine pollution, a
legal framework at international level might be necessary in order to
address such an issue since the varied national laws will not facilitate the
resolution of problems with transboundary nature. Hence, the goal of this
chapter is to critically examine the international legal framework concern-
ing vessel-source marine pollution, to see to what extent it can eectively
deal with the marine pollution problem.
In fact, the problem that international maritime law has to deal with in
regulating transboundary vessel-source marine pollution, is very much
related to the traditional tradeenvironment dichotomy. Whereas at global
(or European) level extensive regulations, case law and legal doctrine deal
with the question to what extent states can impose environmental protec-
tion measures even if this would come in conict with free trade, similar
questions arise in international marine protection law. The question there
is only formulated in a slightly dierent way. The major worry of many
(more particularly shipping) nations is of course to guarantee free shipping
and the possibility to freely navigate in all kinds of waters, also in territor-
ial seas of other states, without being hindered by specic restrictive mea-
sures imposed upon them by coastal states. Coastal states on the other hand
may wish to control more particularly the quality of ships in their water
and the way in which they are navigating, more particularly if this could
constitute a danger to the marine environment in their state. It may be the
case that those who wish to promote free shipping may not be the same as
those who wish to promote the interests of protection of the environment
in their territorial waters. To an important extent, international law aiming
at the protection of the marine environment has therefore tried to strike a
balance between the interests of ag states in free shipping versus the inter-
ests of coastal states in protecting their environment.
To an important extent, international law regarding the protection of the
marine environment from vessel-source pollution deals with rules of com-
petence and jurisdiction. It species under which conditions specic states
(ag, coastal or port) can legislate in specic areas of the waters. By pro-
viding rules on this jurisdiction the various conventions that will be dis-
cussed in this chapter are thus trying to strike precisely a balance between
the traditional trade-environment conict as it appears in the shipping
area. To some, the description of the contents of all of these conventions
may therefore appear slightly technical. It mainly deals with the rules of
jurisdiction and competence and less with the contents of the material rules
imposed by particular states. However, notwithstanding the seemingly
technical legal character of all these rules, they are very important since
66 International environmental law and conventions

they crucially decide to what extent particular states have power to legislate
in this complicated area of vessel-source marine pollution. It may be clear,
however, that this at the same time also constitutes a limit of this chapter:
the chapter will provide an overview of the international legal framework
aiming at the protection of the marine environment and will discuss in
more details the rules with respect to jurisdiction and competence in the
various sea areas. By doing so, we hope to shed some light on the way in
which the shipping versus environmental protection balance has been reg-
ulated in these conventions. It may be clear, however, that within the scope
of this chapter, it will be impossible to, for example, examine whether the
international legal regime as it exists today is also eective in protecting the
marine environment. This would of course require a much more in-depth
analysis which would also involve an empirical study of various pollution
incidents. That is clearly beyond the scope of this chapter.
The structure of this chapter will be as follows: after a brief introduction
and the problem denition in section 1, the international legal framework
for transboundary vessel-source marine pollution will be described from a
historical perspective in section 2, and the current framework will be eval-
uated as well. In section 3, the particular Chinese regime on marine pollu-
tion will be reviewed. In section 4, some basic features of the international
regime will be critically analysed using a comparative approach, and hope-
fully some lessons will be drawn for the development of Chinese laws.
Finally, a few concluding remarks will be reached.

2 THE INTERNATIONAL LEGAL FRAMEWORK


FOR TRANSBOUNDARY VESSEL-SOURCE
POLLUTION: AN OVERVIEW AND EVOLUTION
2.1 Current legal framework: overview

As far as transboundary vessel-source marine pollution is concerned, the


laws and regulations at international level consist of a number of conven-
tions which might be relevant. There are conventions dealing with marine
pollution caused by dierent pollutants originated from shipping activities,
or with dierent stages of pollution before or after a pollution incident
occurs, and those dealing with the technical issues such as the design and
operation of the vessel, safety of navigation and those focusing on human
factors to the extent that the training of the seafarers and manning of a ship
may inuence the pollution risks.
A distinction can be made between the conventions dealing with the
jurisdictional issues in general, and those specically addressing the
International legal framework 67

pollution issue from particular perspectives. The convention concerning


general jurisdictional issues is mainly the United Nations Convention on
the Law of the Sea 1982 (UNCLOS). The UNCLOS provides a jurisdic-
tional framework for the adoption and implementation of safety rules and
standards for transboundary vessel-source marine pollution by dening the
features and extent of a states jurisdiction in dierent capacities. It should
be noted that in addition to the UNCLOS, there is another convention
which is also relevant in this respect, being the Intervention Convention
1969 and its protocol (namely, the International Convention Relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties 1969,
and the Protocol Relating to Intervention on the High Seas in Cases of
Marine Pollution by Substances Other than Oil 1973, referred to as the
Intervention Protocol). Nowadays, the Intervention Convention is consid-
ered by many redundant as a result of the provisions of the UNCLOS reg-
ulating the extension and regime of the dierent sea zones and the right of
intervention to avoid pollution in Article 221.4
On the other hand, there are some other conventions dealing with the
specic issues related to marine pollution, which specify how state jurisdic-
tion should be exercised so as to ensure compliance with the safety stan-
dards and anti-pollution regulations.5 These conventions specically
addressing the pollution issue can also be categorized based on dierent cri-
teria. For instance, there are conventions dealing with specic polluting
media, such as oil, chemicals and other hazardous or noxious substances. In
this respect, the International Convention for the Prevention of Pollution
from Ships 1973 as modied by the Protocol 1978 (MARPOL73/78)
deals with these pollutants respectively in separate Annexes, namely, Oil
(Annex I), Noxious liquid substances in bulk (Annex II), Harmful sub-
stances carried by sea in packaged form (Annex III), Sewage (Annex IV),
Garbage (Annex V). Annex XI deals with air pollution from ships.
If based on when the actors intervene or dierent stages of the pollution
addressed by the conventions, they can be distinguished as those addressing
prevention, response, and liability and compensation for pollution. In
this respect, the main convention addressing prevention of pollution is
MARPOL 73/78. Moreover, the conventions addressing prevention can also
be categorized as those dealing with discharge standards; construction,

4 Blanco-Bazn, IMO Interface with the Law of the Sea Convention, website

of IMO: www.imo.org/InfoResource/mainframe.asp?topic od=406&doc id=1077.


5 Implications of the United Nations Convention on the Law of the Sea for the

International Maritime Organization, LEG/MISC/4, 26 January 2005, p. 8. It is a


study rst carried out by the IMO originally in 1986, and most recently updated in
2005.
68 International environmental law and conventions

design, equipment and manning (CDEM) standards; and restrictions and


regulations related to navigation.6 Based on such a criterion, MARPOL is
the main convention regulating discharge standard; CDEM standards
are mainly established through conventions such as the International
Convention for the Safety of Life at Sea 1974 (SOLAS), the International
Convention on Standards of Training, Certication and Watchkeeping
for Seafarers 1978 (the STCW Convention); and the Convention on
the International Regulations for Preventing Collisions at Sea 1972
(COLREGs) is the main convention related to safety of navigation.
Concerning the response to a pollution incident, there is the
International Convention on Oil Pollution Preparedness, Response and
Co-operation 1990 (OPRC).7 As for the liability for pollution damage,
there are the Civil Liability Convention 1969/Fund Convention 1971 with
subsequent Protocols, the Hazardous and Noxious Substance Convention
1996 and the Bunker Convention 2001. These conventions, although all
dealing with the civil liability and compensation for pollution victims,
address the pollution caused by dierent substances, being oil, HNS and
bunker respectively. It should also be noted that the CLC 1969 is losing its
power and the 1971 Fund was terminated, and the prevailing scheme for oil
pollution compensation consists of the 1992 Protocols, also referred to as
the CLC 1992/Fund Convention 1992.8 The HNS Convention and the
Bunker Convention are not yet in force. The international legal framework
for transboundary vessel-source marine pollution can be summarized as in
Table 4.1 below.

2.2 Historical development

In order to better understand the current legal framework for marine pol-
lution, it is useful to review how they were developed in history.

2.2.1 UNCLOS

2.2.1.1 Early attempts The ocean has long been subject to the freedom
of the sea, a principle established in the 17th century which essentially
limits the national rights and jurisdiction over oceans to a narrow belt
surrounding a nations coastline.
Early attempts to set up an international framework for the law of the
sea probably started with the First United Nations Conference on the Law

6 Such a distinction is made by Bodansky (1991, p. 728).


7 LEG/MISC/4, 26 January 2005, p. 37.
8 For a detailed analysis of the CLC/Fund Convention, see zayir (1998).
International legal framework 69

Table 4.1 International legal framework for transboundary vessel-source


marine pollution

International legal framework


General jurisdictional Specic issues
framework Prevention Response Liability and
compensation
Intervention Discharge standards: OPRC CLC/Fund
Convention 1969 MARPOL 73/78 1990
UNCLOS 1982 CDEM Standards: HNS 1996 (not in
SOLAS, SCTW force yet)
Safety of navigation: Bunker Convention
COLREGs 2001

of the Sea (UNCLOS I) in 1958, which adopted four conventions on the


law of the sea in Geneva. These four conventions include the Convention
on the Territorial Sea and the Contiguous Zone 1958, the Convention on
the High Seas 1958, the Convention on Fishing and Conservation of the
Living Resources of the High Seas 1958, and the Convention on the
Continental Shelf 1958. They represented early eorts to establish a single
comprehensive jurisdictional instrument. Later, in 1960, the Second United
Nations Conference on the Law of the Sea (UNCLOS II) was held again
in Geneva. This turned out to be an unsuccessful attempt.
However, the four Geneva Conventions of 1958 were criticized for being
either too limited in application or did not provide for a comprehensive
duty to prevent marine pollution or protect the marine environment, and
even oered no denition of the term pollution.9 Moreover, the jurisdiction
for vessel-source pollution as an important issue was not resolved.
Controversy still existed concerning the breadth of the territorial sea.10 The
principles set up in the 1958 Geneva conventions for demarcation of juris-
dictions were continuously contested by unilateral actions of some states.
Hence, these eorts failed to achieve the goal of establishing an
international legal framework.

2.2.1.2 1969 Intervention Convention The Torrey Canyon incident of


1967 revealed certain doubts as to the power of a state under international
law with respect to an incident occurring on the high seas. The Torrey

9 Birnie and Boyle (2002, p. 351).


10 Molenaar (1998, pp. 467).
70 International environmental law and conventions

Canyon has shown that where the casualty occurred on the high seas but
threatened a coastal state, it was not clear under the then customary law to
what extent the coastal state could take measures to protect its territory
from pollution. The four 1958 Geneva conventions on the law of the sea
did not provide any solution either. Hence, the marine pollution caused by
vessels with transboundary characteristics remained in a legal vacuum. In
order to solve this problem, a diplomatic conference was held in 1969 which
adopted on 29 November 1969 the International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties 1969
(the Intervention Convention). The Intervention Convention entered into
force on 6 May 1975. It arms the right of a coastal state to take the nec-
essary measures on the high seas to prevent, mitigate or eliminate danger
to its coastline or related interests from pollution by oil or the threat
thereof, following a maritime casualty.
On 2 November 1973, the Intervention Convention was amended to
extend to cover substances other than oil through the adoption of the 1973
Protocol,11 which entered into force on 30 March 1983. Later in 1991, 1996
and 2002, the list of substances contained in the Intervention Convention
was revised.

2.2.1.3 1982 UNCLOS During 1973 and 1982, the Third United
Nations Conference on the Law of the Sea (UNCLOS III) was convened,
and the issue on the law of the sea was extensively deliberated. The
UNCLOS was nally adopted in 1982.
The UNCLOS contains a separate part on marine pollution (Part XII).
It distinguishes six main sources of ocean pollution: land-based and coastal
activities, continental shelf drilling, potential seabed mining, ocean
dumping, vessel-source pollution, and pollution from or through the
atmosphere.12 It lays down rst of all the fundamental obligation of all
states to protect and preserve the marine environment. It further urges all
states to cooperate on a global and regional basis in formulating rules and
standards and otherwise take measures for the same purpose. It also denes
the jurisdiction of a state with dierent status, being a state as a ag state,
coastal state or port state.
When establishing the legal framework for marine pollution, particularly
the pollution caused by vessels with transboundary nature, the UNCLOS
takes into account the interests of various interest groups, mainly those

11 The Protocol Relating to Intervention on the High Seas in Cases of Marine

Pollution by Substances Other than Oil 1973, referred to as the Intervention Protocol.
12 Articles 207212 of the UNCLOS.
International legal framework 71

with strong shipping interest (the maritime states) and those with interest
in protecting their extensive and vulnerable coastlines (mainly the coastal
states). Obviously the strength of these interest groups might be dierent
nowadays than when the UNCLOS was negotiated. Hence, how they
inuence the shape of various conventions will be analysed further in the
context of historical development of the conventions and in section 4 on
the detailed analysis of the competences of states for dealing with vessel-
source marine pollution.

2.2.2 Prevention

2.2.2.1 OILPOL 1954 The International Convention for the Prevention


of Pollution of the Sea by Oil 1954 (OILPOL) entered into force on 26 July
1958, attempting to tackle the problem of pollution of the sea by oil
(dened as crude oil, fuel oil, heavy diesel oil and lubricating oil) in two
main ways. First, it established prohibited zones where the discharge of oil
above a certain rate was forbidden. Secondly, it required contracting parties
to take all appropriate steps to promote the provision of facilities for the
reception of oily water and residues. The OILPOL was amended in 1962,
1969 and 1971 to extend its scope of application to ships of a lower tonnage
and also to extend the prohibited zones.
However, the OILPOL was not particularly successful. One of the most
important reasons for its failure was that the enforcement record of ag
states was not strong enough to give them sucient interest in pursuing
enforcement vigorously in areas beyond their territorial jurisdiction.
Moreover, the ag states would be confronted with practical problems of
collecting evidence and bringing proceedings against ships which rarely
entered their ports. Some ags of convenience13 are thus able to avoid the
more onerous regulations, which coastal states could do little to enforce.14

2.2.2.2 MARPOL 73/78 Although 1954 OILPOL went some way in


dealing with oil pollution, it did not satisfy the needs of the growing oil
trade and development of industrial practices. When the Torrey Canyon
spilled oil in 1967, the deciencies of the existing system was exposed. As a
result, IMO adopted on 2 November 1973, the convention on prevention,
the International Convention for the Prevention of Pollution from Ships
(MARPOL). The 1973 MARPOL incorporated much of the OILPOL
1954 and its amendments into Annex I covering oil pollution. Dierent

13 Further discussion on ag of convenience is in section 4 of this chapter.


14 Birnie and Boyle (2002, p. 362).
72 International environmental law and conventions

from the prohibited zones established in OILPOL 1954, MARPOL in


Annex I established some discharge standards and the concept of special
areas where discharges of oil are completely prohibited. Dierent from its
predecessor, the MARPOL Convention went further to address other
forms of pollution from ships and therefore other Annexes covered chem-
icals, harmful substances carried in packaged form, sewage and garbage.
In response to a spate of tanker accidents in 1976 and 1977, a Conference
on Tanker Safety and Pollution Prevention was held in February 1978, and
at this conference, measures relating to tanker design and operation were
adopted on 17 February1978, in the 1978 Protocol.15 The 1978 Protocol
also made a number of changes to Annex I, including the use of segregated
ballast tanks (SBT) which are required on all new tankers of 20,000 dwt and
above (in MARPOL 1973, SBT was only required on tankers of 70,000 dwt
and above). In addition, the entry into force condition was modied to
facilitate the entry into force.16 Hence, what we refer to as MARPOL 73/78
is a combination of two conventions adopted in 1973 and 1978 respectively
and updated by amendments through the years.17
The MARPOL Convention is now the main international convention
covering the prevention of pollution of the marine environment by ships
from operational or accidental causes. The articles of the Convention
mainly deal with jurisdiction, powers of enforcement, and inspection. The
more detailed anti-pollution regulations are contained in Annexes. The
MARPOL Convention regulates pollution by setting new construction
standards, which are more stringent for new vessels. Discharge of a small
quantity of oil is still permitted but only if it takes place en route, more than
50 miles from land and not in special areas where virtually all discharges
are prohibited.18

15 Website of IMO: www.imo.org.


16 The MARPOL 1973 required ratication by 15 states, with a combined mer-
chant eet of not less than 50 per cent of world shipping by gross tonnage, to enter
into force. By 1976, it had received only three ratications, Jordan, Kenya and
Tunisia, representing less than 1 per cent of the worlds merchant shipping eet.
This was despite the fact that states could become party to the convention by only
ratifying Annexes I (oil) and II (chemicals). Annexes III to V were only optional. In
order to achieve the entry into force of MARPOL, the 1978 Protocol allowed states
to become party to the Convention by rst implementing Annex I (oil), as it was
decided that Annex II (chemicals) would not become binding until three years after
Protocol entered into force. This gave states time to overcome technical problems in
Annex II, which for some had been a major obstacle in ratifying the Convention.
17 Annex V entered into force on 31 December 1988, while Annex III entered

into force on 1 July 1992, Annex IV entered into force on 27 September 2003, Annex
VI was adopted in September 1997 and entered into force on 19 May 2005.
18 Annex 1, Regulations 9 and 10.
International legal framework 73

Compared with the 1954 OILPOL, MARPOL has a more eective


enforcement mechanism. Under MARPOL, ag states are required to
report to IMO on actions they have taken with regard to ships found
to have violated MARPOL standards, and on a list of matters relevant to
implementation of the Convention. Their record of doing so is generally
poor, and largely conned to developed states whose tonnage is a dimin-
ishing proportion of the whole.19 This mechanism involves the cooperation
of coastal states, port states and ag states in a system of certication,
inspection, and reporting the purposes of which is to make operation of
defective vessels dicult or impossible and to facilitate the performance by
ag states of their primary jurisdiction to prosecute and enforce applicable
laws. This enforcement mechanism is considered a major advance com-
pared with the 1954 OILPOL.20

2.2.2.3 COLREGs The Convention on the International Regulations


for Preventing Collisions at Sea 1972 (COLREGs)21 mainly deals with nav-
igation rules to prevent collision and to improve safety of navigation. The
COLREGs also recognize the trac separation schemes.

2.2.2.4 SOLAS The International Convention for the Safety of Life at


Sea 1974 (SOLAS) is the principal convention dealing with maritime safety
through the CDEM standards and navigation standards. It is intended to
minimize the risk of maritime accidents by regulating navigation and sea-
worthiness standards. It was amended in 1978 through the 1978 Protocol
which makes the use of certain additional safety features mandatory for oil
tankers and other large vessels, both for safety of navigation and pollution
prevention purposes.
Another important SOLAS amendment which entered into force in 1998
makes compliance with the International Safety Management Code (ISM
Code) mandatory, inter alia, for all oil and chemical tankers. Ships can only
be certied by the ag state if the operating company (this may be the owner,
charterer or manager) has in place safety and environmental policies,
instructions and procedures in accordance with the ISM Code. The under-
lying assumption is that operating companies are best able to ensure that
ships meet adequate operational standards. Shipping companies whose
vessels do not do so will be unable to operate. Some 78 per cent of ships were
thought to comply at the time when the ISM Code entered into force.22

19 Articles 4(3), 6(4) and 11 of MARPOL Convention.


20 Birnie and Boyle (2002, pp. 3634, p. 367).
21 It was adopted on 20 October 1972 and entered into force on 15 July 1977.
22 Birnie and Boyle (2002, p. 361).
74 International environmental law and conventions

2.2.2.5 STCW Convention The International Convention on Standards


of Training, Certication and Watchkeeping for Seafarers 1978 (the STCW
Convention) was adopted on 7 July 1978, and entered into force on 28 April
1984. The STCW Convention established internationally the minimum
requirements on training, certication and watchkeeping for seafarers. One
important feature of the STCW Convention is that it applies to ships of
non-party states when visiting ports of states which are parties to the
Convention. Article X requires parties to apply the control measures to
ships of all ags to the extent necessary to ensure that no more favourable
treatment is given to ships entitled to y the ag of a state which is not a
party than is given to ships entitled to y the ag of a state that is a party.
The STCW Convention was amended in 1995.23 The revised Chapter I
includes enhanced procedures concerning the exercise of port state jurisdic-
tion to allow intervention in the case of deciencies deemed to pose a danger
to persons, property or the environment (regulation I/4). This can take place
if certicates are not in order or if the ship is involved in a collision or ground-
ing, if there is an illegal discharge of substances (causing pollution) or if the
ship is manoeuvred in an erratic or unsafe manner. Other amendments to the
STCW Convention include the 1997, 1998 and 2006 Amendments.

2.2.3 Response: OPRC


In 1989, at the call of some leading industrial nations, the IMO worked on
a convention aimed at providing a global framework for international
cooperation in combating major incidents or threats of marine pollution.
This led to the adoption of the International Convention on Oil Pollution
Preparedness, Response and Co-operation 1990 (OPRC) on 30 November
1990. The OPRC entered into force on 13 May 1995. The Convention is
designed to facilitate international cooperation and mutual assistance in
preparing for and responding to a major oil pollution incident and to
encourage states to develop and maintain an adequate capability to deal
with oil pollution emergencies.
Parties to the OPRC are required to establish measures for dealing with
pollution incidents, either nationally or in cooperation with other coun-
tries. Ships are required to carry an onboard oil pollution emergency
plan.24 Ships are also required to report incidents of pollution to coastal

23 The 1995 Amendments were adopted on 7 July 1995, and entered into force

on 1 February 1997.
24 The OPRC Convention also requires operators of oshore units under the

jurisdiction of the parties to have oil pollution emergency plans or similar arrange-
ments which must be co-ordinated with national systems for responding promptly
and eectively to oil pollution incidents.
International legal framework 75

authorities and the Convention details the actions to be taken. It calls for
the establishment of stockpiles of oil spill combating equipment, the
holding of oil spill combating exercises and the development of detailed
plans for dealing with pollution incidents.
This Convention was amended in 2000 which extends the coverage
to hazardous and noxious substances other than oil (Protocol on
Preparedness, Response and Co-operation to Pollution Incidents by
Hazardous and Noxious Substances 2000, known as the HNS Protocol).25

2.2.4 Liability

2.2.4.1 CLC/Fund The convention dealing with liability for oil pollu-
tion damage and compensation for pollution victims is the International
Convention on Civil Liability for Oil Pollution Damage 1969 (the CLC
1969) and the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage 1971
(Fund Convention 1971).
The Torrey Canyon incident in 1967 not only disclosed the defects of the
existing system concerning the right of a coastal state to intervene in case
of pollution occurring on the high seas, but also demonstrated the
diculty of oil pollution victims in getting compensation for the pollution
damage they have suered. Hence, when the diplomatic conference was
convened in 1969, in addition to the public law issue mentioned above, the
private law issue, being civil liability and compensation for oil pollution
damage was also discussed. The result was the adoption of the CLC
1969.26
As envisaged in the 1969 conference, the CLC alone did not suce to
provide compensation for the pollution victims and the oil industry should
also contribute to the compensation via an international oil pollution com-
pensation fund. Towards this direction, an International Oil Pollution
Compensation Fund (IOPC Fund or the Fund) was established in 1971
through the Fund Convention.

25 It should be noted that the denition of hazardous and noxious substance

(HNS) in the HNS Protocol is dierent from the denition in the HNS Convention.
The HNS Protocol denes it to be any substance other than oil which, if introduced
into the marine environment, is likely to create hazards to human health, to harm
living resources and marine life, to damage amenities or to interfere with other legit-
imate uses of the sea. For more analysis on the OPRC and its HNS Protocol, see
De la Fayette (2001, pp. 1824).
26 For a detailed analysis of the legal history of the CLC/Fund system, see

Wang (2007, pp. 197242).


76 International environmental law and conventions

Later oil spill incidents, such as Amoco Cadiz in 1978, indicated that the
CLC 1969/Fund 1971 regime was not sucient in case of major oil spills.
As a result, another diplomatic conference was convened in 1984 to revise
the compensation system, including the increase of compensation available
in the two conventions. However, these changes never took place since the
1984 Protocols never came into force due to the refusal of the United States.
Nevertheless, the Exxon Valdez incident in 1989 showed that the changes
in the 1984 Protocols, especially the higher compensation amount, were
needed. Hence, the Conventions were amended again in the 1992 Protocols
which mainly change the conditions of entering into force. As a result, the
1992 Protocols came into force in 1996. However, the accident of Erika again
illustrated the insuciency of the existing regime. Hence these Conventions
were again amended in 2000 whereby the compensation limits were substan-
tially increased. But before the 2000 Protocols could become eective, the
Prestige incident occurred, as a reaction to which a third tier of compensa-
tion was established in the 2003 Supplementary Fund Protocol.27
There are at least two points worth attention concerning the compensation
regime.Therstisthattheapplicationof theconventionsoncompensationhas
evolved through history. The 1969/1971 regime applied only to territory
including territorial sea which was not even dened in the Convention. When
these conventions were rst negotiated, there was not a uniform international
regime on the law of the sea. Hence, the application was up to the interpretation
of respective contracting states which might vary from country to country. The
application scope was extended through the 1992 Protocols to the EEZ.
Moreover, the adoption of the UNCLOS has resolved some confusion con-
cerning the application scope of the CLC 1992/Fund 1992.
A second point is that the compulsory insurance requirement under the
CLC imposed on the shipowner was to be implemented by the ag state.

2.2.4.2 HNS Convention In 1984 the IMO convened a conference to con-


sider a new instrument dealing with compensation for accidents involving
hazardous and noxious substances (HNS). However, the issue turned out to
be so complex that the attempt had to be abandoned. It was not until 1996
that the matter could be considered again, and resulted in the adoption of
the International Convention on Liability and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substances by Sea
(HNS Convention) on 3 May 1996. The HNS Convention adopts a two-tier
system modelled on the CLC/Fund Convention (being a strict liability on the
shipowner with a fund on top), but it goes further in that it covers not only

27 For an analysis of oil pollution system, see Oosterveen (2006, pp. 24568).
International legal framework 77

pollution damage but also the risks of re and explosion, including loss of
life or personal injury as well as loss of or damage to property. The com-
pensation provided to the victims of accidents involving HNS (such as chem-
icals) is also up to a certain amount, as in the oil pollution compensation
regime.28 However, the HNS Convention has not entered into force so far.

2.2.4.3 Bunker Convention It was realized that there was a gap in the
pollution liability and compensation regime, bunkers on non-tankers still
fall outside the compensation regime. Hence, at a diplomatic conference in
March 2001, the International Convention on Civil Liability for Bunker Oil
Pollution Damage 2001 (Bunker Convention 2001) was adopted to address
such a gap. The Bunker Convention to a large extent follows the two-tier
liability system for oil pollution damage (CLC/Fund Convention), but with
some dierences.29

2.3 Evaluation

Already in the 1950s, there were some attempts to tackle the marine pollu-
tion problem at international level, such as the OILPOL 1954 which
became the predecessor of MARPOL on marine pollution prevention, and
the 1958 Geneva Conventions on the law of the sea which provide a basis
for the conclusion of the 1982 UNCLOS. Hence, these eorts to tackle the
marine pollution issue may seem unsuccessful, but they provide an impor-
tant basis for the later development of international law. Nevertheless, the
international legislation on marine pollution remains a slow process.
It was probably not until the occurrence of the Torrey Canyon incident in
1967 that the whole world began to realize the seriousness and urgency of
the problem of marine pollution, and hence more initiatives were taken and
as a result more inuential international conventions were concluded in the
years following the Torrey Canyon. At the diplomatic conference in 1969,
two conventions were adopted to deal with the deciencies indicated by the
Torrey Canyon incident, namely, the Intervention Convention on the public
law issue and the CLC on private law issue. Later in 1971, the Fund
Convention was adopted to complete the civil liability and compensation
system for marine oil pollution. Other deciencies indicated by the Torrey

28 For an overview of the HNS Convention, see An Overview of the HNS

Convention, prepared by a Correspondence Group under the leadership of the


United Kingdom and approved by the Legal Committee of the IMO at its 84th
session held in April 2002. See the website: LED\INF\FACTS\LIABILITY AND
COMPENSATION LEGAL ISSUES\HNS conventions overview.doc.
29 See Griggs (2001), and also Wu (2002, pp. 55367).
78 International environmental law and conventions

Canyon incident (mainly the prevention aspect) were the target of the
MARPOL Convention, which was adopted in 1973 and later revised in
1978. At the same time, lots of other important conventions concerning
marine pollution were adopted, such as the SOLAS, MARPOL and the
STCW Convention. Meanwhile, during the period between 1973 and 1982,
the Third UN Conference on the Law of the Sea was deliberating, and the
nally adopted UNCLOS provides a jurisdictional framework for trans-
boundary marine pollution issues. Since its adoption (even before it came
into force on 16 November 1994), the UNCLOS has been accepted to have
the status of customary international law30 and is used as a reference for the
elaboration of relevant conventions related to marine pollution, bearing in
mind the need to conform with the constitution of the oceans.
While these conventions were mainly concluded in the 1970s, major
changes took place in the 1990s with the adoption of some important pro-
tocols. For instance, the liability and compensation regime for oil pollution
damage was substantially changed in 1991 and it was only then that the
current regime was formed. Moreover, major changes often took place as
reaction to some catastrophic pollution incidents, although operational
discharge is one of main sources for pollution as well.31 These changes
often took place as a reaction to some dramatic pollution incidents, which
revealed the insuciency of the existing systems. Then the question arises
if it is the design of the conventions e.g. the pollution standards and the
enforcement measures prescribed in the conventions are not eective or
if it is the implementation and compliance of these conventions that is the
major problem. This will be analysed in section 4.

3 CHINA

3.1 Introduction

China has a long coastline of 18,000 km from the mouth of the Yalu River
in the Liaoning Province in the north to the Beilung River in the Guangxi
Autonomous Region in the south. The seas adjacent to the mainland are
the Bohai Sea, the Yellow Sea the East China Sea and the South China
Sea. The Bohai Sea is the internal sea of China, and the other seas are
semi-enclosed seas within the denition of the UNCLOS.32 The Yellow
Sea is enclosed by Korea on the east and by China on the west and north,

30 Weinstein (1994, p. 155).


31 Molenaar (1998, p. 20).
32 Articles 8 and 122 of the UNCLOS.
International legal framework 79

and adjacent to the East China Sea on the south.33 Among these, the
Yellow Sea and the East China Sea are bounded by China, North Korea
(Democratic Peoples Republic of Korea), South Korea (Republic of
Korea) and Japan.34 This area involves geographically the boundaries of
several states. Moreover, the large amount of oil transported to Japan and
China often poses a concern for marine pollution caused by oil.35 The
South China Sea has always been an area of conict among surrounding
states, including China and Japan, for the demarcation of territorial
rights.36 In addition, it is a busy trac route as well. Hence, the geo-
graphical situation exposes China to a severe risk of marine pollution. In
addition, the Chinese economy mainly develops along its eastern coast-
line, and its large demand for oil is mainly imported through vessel trans-
port at sea. Hence, transboundary vessel-source marine pollution is
indeed a serious problem that the Chinese government is being confronted
with.

3.2 Historical development of Chinese law on transboundary vessel-source


marine pollution

Since the Peoples Republic of China was founded in 1949, the Chinese
government started the long process of legislation for the new China. On
4 September 1958, inuenced by the 1958 Geneva conventions on the law
of the sea, China promulgated a Territorial Sea Declaration (Declaration
of the Peoples Republic of China on Chinas Territorial Sea).37 The
Territorial Sea Declaration is aimed at the protection of its sovereignty
against the US warships in Chinas territorial sea.
Some other important legislation adopted in the 1950s and 1960s
mainly concerned the demarcation of Chinese jurisdiction over its mar-
itime zones. It included regulations providing for special requirements for
ships passing some areas of strategic importance, such as Lao Tieh Shan
Channel which connects the Bohai Sea and the Yellow Sea, and the
Qiongzhou Strait which is also considered a crucial strategy location.38

33 Yuan (1988, p. 109).


34 This is considered a regional centre of endemism for invertebrates and sh.
See Living Seas, Marine Conservation Actions in Asia/Pacic, at the website of
WWF, www.worldwildlife.org/wildplaces/asia.cfm.
35 Japan is the second oil importer in the world, and China is the third. See the

information from the website: www.marcon.com.


36 For an overview of the conicts involving the South China Sea, see

McDorman (1993, pp. 2635); see also Zou (1999, pp. 2754).
37 Zou (1998, p. 28). Take the use of straight baseline, for example, this com-

plies with the 1958 Conventions.


80 International environmental law and conventions

The regulations adopted during this period did not have any concern for
marine environmental protection, but mainly for political reasons such as
the security of the sovereignty of the Chinese government. This not only
reects the domestic situation in China, i.e. that the new government was
just established and still some unstable factors needed to be settled, but
also it corresponds with the international development at that stage; there
was no accepted international legal framework addressing the jurisdic-
tions of states over the maritime zones, not to mention the issue of trans-
boundary marine pollution in particular.
The rst Chinese domestic legislation on marine environmental protec-
tion was adopted in 1982, the Marine Environmental Protection Law
(MEPL 1982).39 A series of regulations were enacted to implement the
MEPL 1982, covering various aspects of marine pollution.40 Among these
regulations, the most important regarding vessel-source pollution are the
Regulations concerning the Prevention of Pollution of Sea Areas by Vessels
(the Prevention Regulations).41
It should be noted that at the time when these regulations were promul-
gated, although the UNCLOS was adopted China has not ratied it. So in
these regulations, the new concepts adopted in the UNCLOS such as the
EEZ were not endorsed. A more general expression is used, being other sea
areas within Chinas jurisdiction. According to Zou, the use of such a term
is intended to cover the areas potentially to be Chinas EEZ and continen-
tal shelf.42

38 These mainly refer to the Regulations Required to be Observed by Merchant

Vessels Passing through the Lao Tieh Shan Channel promulgated in 1956, and the
Regulations Governing Non-military Foreign Vessels Passing through the
Qiongzhou Strait promulgated on 8 June 1964. For an analysis of these legislations,
see Zou (1998, pp. 248).
39 The MEPL 1982 was adopted on 23 August 1982, and came into eect as of

1 March 1983. However, the MEPL 1982 was revised in 1999.


40 These regulations include, inter alia, the Regulations concerning the

Prevention of Pollution in Sea Areas by Vessels of 1983, the Regulations concerning


Dumping of Wastes at sea of 1985, the Regulations concerning Environmental
Protection in Oshore Oil Exploration and Exploitation of Ship-Breaking of 1988,
the Regulations on the Prevention and Control of Pollution of the Marine
Environment by Seashore Construction Projects of 1990, the Regulations on the
Prevention and Control of Pollution of the Marine Environment from Land-based
Source of 1990.
41 Promulgated by the State Council of the Peoples Republic of China on 29

December 1983.
42 For example, Article 2 of MEPL 1982 provides that it applies to the internal

sea and territorial sea of the Peoples Republic of China and all other sea areas
under the jurisdiction of the Peoples Republic of China.
International legal framework 81

In 1996, China ratied the UNCLOS, 14 years after signing it.43 At the
same time, the Chinese government also made a declaration concerning the
baselines of the territorial sea of China.44 Meanwhile, Chinese law con-
cerning the territorial sea and the contiguous zone was adopted in 1992,
and the law on the EEZ and the continental shelf was promulgated in
1998.45 The provisions in these laws closely follow those in the UNCLOS.46
Thus, the Chinese legal regime on its jurisdiction over maritime zones is
basically established.
The provision with respect to marine environmental protection is rather
simple in the EEZ Law. Article 10 of the EEZ Law simply provides that the
competent authorities concerned of China have the right to take necessary
measures for the purpose of prevention, reduction and control of marine
pollution and of protection and preservation of the marine environment in
the exclusive economic zone and the continental shelf. The reason for such
a simple provision in EEZ Law is probably that there are other laws and
regulations with regard to marine environmental protection (e.g. MEPL
and Prevention Regulation) which are also applicable to the EEZ and con-
tinental shelf of China, although there is no specic reference to the
concept of EEZ and continental shelf.47
With the economic development, the rather simple provisions in the
MEPL 1982 seemed to be outdated. Moreover, the marine environment con-
tinued to deteriorate which has attracted the attention of the Chinese gov-
ernment to strengthen the existing laws on marine environment protection.48
Hence, the MEPL was revised in 1999. The amended Marine Environmental
Protection Law is referred to as MEPL 1999.49

43 The Decision of the Standing Committee of the National Peoples Congress

of the Peoples Republic of China on Ratication of the United Nations


Convention on the Law of the Sea, 15 May 1996.
44 Declaration of the Government of the Peoples Republic of China on

the Baselines of the Territorial Sea of the Peoples Republic of China, 15 May 1996.
45 See respectively the Law of the Peoples Republic of China on the Territorial Sea

and the Contiguous Zone, adopted on 25 February 1992, and entered into force on 25
February 1992; the Law of the Peoples Republic of China on the Exclusive Economic
Zone and the Continental Shelf, promulgated and entered into force on 26 June 1998.
46 Zou (2001a, p. 73).
47 Zou (2001a, p. 76).
48 For a review of the background for the amendment of the MEPL 1982, see

Zou (2001b, pp. 34760). According to Zou, one of the reasons that the marine
environment in China has deteriorated is the frequent occurrence of maritime casu-
alties or pollution incidents.
49 The MEPL 1999 was adopted on 25 December 1999, and has entered into

eect as of 1 April 2000. For a detailed analysis of the MEPL 1982, see
Broedermann (1985, pp. 6599).
82 International environmental law and conventions

With the coming into force of the new MEPL 1999, the problem arises
as to the Prevention Regulation which was originally enacted in 1983 to
enforce the MEPL of 1982.50 The Regulation applies to Chinese and
foreign vessels within the sea areas and sea ports under Chinese jurisdiction
as well as to shipowners and other individuals (Article 2). Now that the
MEPL was revised in 1999, the Prevention Regulation is obviously out-
dated, and it is now in the process of revision to keep it in line with the new
provisions in the MEPL 1999.
Further legislation worth mentioning is the China Maritime Code51
which was adopted in 1993 and in many respects bears similarities to the
international conventions to which China is a party.52 Since the pollution
issue discussed in this chapter is mainly from vessel source, hence, when an
incident occurs related to vessels or shipping activity, the China Maritime
Code is often relevant as well.
In addition, there are several Chinese laws and regulations dealing par-
ticularly with the safety of navigation, such as the Regulations with respect
to Sea Port Pilotage of 1976, and the Regulations Governing Supervision
and Control of Foreign Vessels of 1979, the Maritime Trac Safety Law
of 1983. In 1990, the Regulations Governing the Investigation and
Settlement of Maritime Trac Accident was promulgated.

3.3 Analysis of Chinese laws on transboundary vessel-source marine


pollution

The application of laws in China follows the principle of lex specialis


derogat lex generalis. Thus, the lex specialis to be considered for the issue of
transboundary marine pollution may be the Marine Environmental
Protection Law 1999 and the Prevention Regulations 1983.
MEPL 1999 Article 2 provides that This law shall apply to the internal
water, territorial sea, contiguous zone, exclusive economic zone and con-
tinental shelf of the Peoples Republic of China and any other sea areas
under the jurisdiction of the Peoples Republic of China. One may wonder

50 Article 1 of the Regulation reads: These Regulations are hereby formulated

for the enforcement of the Law of Marine Environmental Protection of the Peoples
Republic of China, the prevention of pollution of sea areas by vessels and the
preservation of marine ecological environment.
51 The Maritime Code of the Peoples Republic of China was adopted on

7 November 1992 and eective as of 1 July 1993.


52 For example, the chapter on salvage in the China Maritime Code complies

with the general principles in the Salvage Convention 1989 to which China is a con-
tracting party.
International legal framework 83

what the Chinese legislators mean by any other sea areas under the juris-
diction of the Peoples Republic of China. In the MEPL 1982, the same
term was used because China had not ratied the UNCLOS and the con-
cepts of EEZ and continental shelf did not exist in Chinese law. Hence,
any other sea areas under the jurisdiction of the Peoples Republic of
China was interpreted as the areas to be included in the Chinese jurisdic-
tion, including the EEZ and the continental shelf. However, when the
MEPL was revised in 1999, China had ratied the UNCLOS in 1996, and
the Law on the EEZ and the Continental Shelf had entered into force
which incorporates the concepts of EEZ and continental shelf in Chinese
law. Hence, the other sea areas mentioned in the MEPL 1999 seems not
so clear.
Another feature of Chinese law is that it recognizes the supremacy of
international conventions when provisions in national law dier from the
convention.53 Such a principle means that in case of conict between the
international convention to which China is a party and the domestic law,
the international convention shall prevail unless a reservation has been
made by the Chinese government. The Marine Environment Protection Law
199954 also follows such a rule to give priority to international conventions.
Moreover, the Chinese law often makes a distinction between situations
where only purely domestic issues are involved and where there is a so-called
foreign element involved.55 For example, Article 13 of the Prevention
Regulations stipulates that Vessels engaged in international trade with a
bulk oil carrying capacity of 2,000 tons shall, besides observing these
Regulations, be bound by the provisions of the International Conventions
on Civil Liability for Oil Pollution Damage, 1969. As a result, all the
Chinese vessels involved in international trade have taken out compulsory
insurance as required by the international convention, in this case, the CLC.
On the other hand, with vessels not navigating on international lanes, being
the oshore and inland water navigating ships, it is often interpreted by
Chinese maritime courts that only domestic Chinese law shall apply.56
Hence, the applicable law in this respect should be the MEPL 1999. Article

53 See for example Article 142 (2) of the General Principles of the Civil Law of

the Peoples Republic of China.


54 Article 97 of Marine Environment Protection Law 1999 reads: If the provi-

sions provided in an international treaty regarding environment protection con-


cluded or acceded to by the Peoples Republic of China are not consistent with the
provisions provided in this law, the provisions of the international treaty shall apply,
unless the Peoples Republic of China has announced reservations.
55 See Zheng (1987, p. 233).
56 This is also the opinion supported by many Chinese scholars, see e.g. Zhao

(2001).
84 International environmental law and conventions

66 of the MEPL only provides for a very general requirement that the state
should establish a compulsory insurance mechanism, which has not been
eectively implemented so far. Therefore, in practice the tankers navigating
on domestic lines often lack such liability insurance. In case they cause pol-
lution damage, it very often happens that the victims might not be able to
receive sucient compensation given the insolvency problem of the ship-
owner without support of any nancial guarantee such as insurance. Thus,
these victims might be put in a disadvantaged position compared with those
at international level where the liability of the shipowner is always accom-
panied by liability insurance. However, one may argue that in the context of
transboundary marine pollution caused by vessels, it is often the ships nav-
igating on international lanes (hence with the foreign element) that are
involved in an incident, and it is the situation that the international conven-
tions shall apply. In theory, the aws in Chinese law will not have too much
inuence on the settlement of the transboundary cases since it will be the
international conventions that shall be applicable in the transboundary
cases. On the other hand, as will be discussed in section 4, this shows pre-
cisely the weakness of the ag state jurisdiction, being that it focuses more
on national interest protection than environmental concerns for externality
caused to other states.

4 ANALYSIS OF COMPETENCES TO REMEDY


TRANSBOUNDARY VESSEL-SOURCE MARINE
POLLUTION
4.1 Overview

Section 2 has depicted the international legal framework for transbound-


ary vessel-source marine pollution, and we have seen that under interna-
tional law, a state may exercise its jurisdiction as a ag state, or a coastal
state or a port state. In this section, the exact competences of the ag state,
coastal state and port state will be analysed and how they interact with each
other will also be examined.
The UNCLOS while demarcating the limits of dierent maritime zones,
established the rights and obligations of states in dierent capacities, either
as a ag state, or a coastal state. In addition, Part XII of the UNCLOS,
under the title Protection and Preservation of the Marine Environment,
provides for the obligations of states with respect to marine environmental
protection. Articles 192 and 194 lay down the general obligation for states
to prevent, reduce or control marine pollution. Article 211 further species
the measures to be taken by states in case of vessel-source pollution.
International legal framework 85

Furthermore, in the section on enforcement, Articles 217, 218 and 220


contain provisions on enforcement particularly by ag state, port state and
coastal state respectively. Article 221 provides for measures to avoid pollu-
tion arising from maritime casualties.
As examined in the section on legal history (section 2), there are some
important conventions dealing with specic aspects of marine pollution
which were developed before the existence of the UNCLOS. Hence, one
may wonder if the jurisdictions provided under these conventions comply
with the principles established through the UNCLOS. Moreover, questions
may also arise as to the conventions adopted after the entry into force of
the UNCLOS, whether they indeed follow the jurisdictional framework set
up therein.
Hence in this section, the concepts of ag state, port state and coastal
state jurisdiction as dened in the UNCLOS will be examined in a com-
parative approach, and some observations will be made from this analysis
with implications for China. The provisions in other conventions such as
MARPOL and the CLC will not be analysed in detail but only to examine
how they interact with the general framework of the UNCLOS.

4.2 Flag state jurisdiction

4.2.1 Prescriptive jurisdiction


Traditionally in maritime law, it has always been the ag state (the state
where a ship is registered and whose ag it is entitled to y) that has the
jurisdiction over ships ying its ag. The UNCLOS conrms that it is the
duty of the ag state to enforce the rules adopted for the control of marine
pollution from vessels, irrespective of where a violation occurs. However, it
makes an important change in the sense that the exclusive character of ag
state jurisdiction is eliminated, and instead strikes a balance between the
powers of the ag state and the coastal state.57
Already at rst blush, one can understand that probably not too much
should be expected from the ag state as far as the control of polluting
activities from their ships is concerned. A rst problem is of course that the
interest of the ag state is merely an economic one. It may enjoy the eco-
nomic benets (in taxes) from ships registered in a particular state and not
worry too much about damage that could occur elsewhere. This is the
typical example of the transboundary externality problem as indicated by
economists: ag states like Liberia or Panama may have very little incentive
to impose stringent regulations to prevent pollution from ships sailing

57 Birnie and Boyle (2002, pp. 348, 370).


86 International environmental law and conventions

under their ag, more particularly if that pollution does not occur in front
of their states, but for example in Europe or China. Nevertheless,
UNCLOS has imposed serious obligations on ag states with respect to the
control of ship safety.
The basic obligations of the ag state in relation to safety of navigation
are to be found in Part VII of UNCLOS dealing with the high seas.58
Article 94(1) of UNCLOS stipulates that every state shall eectively exer-
cise its jurisdiction and control in administrative, technical and social
matters over ships ying its ag. Hence, the primary jurisdiction over a
ship and hence the pollution it may cause lies with the ag state.
Article 94(3) and (4) of UNCLOS further requires ag states to take nec-
essary measures to ensure safety at sea in respect of construction, equip-
ment and seaworthiness of ships, manning of ships and use of signals;59
and to ensure appropriate survey of ships and appropriate qualications of
the crew.60
Article 94(5) of UNCLOS explains that the necessary measures
mentioned in Article 94(3) and (4) shall conform to generally accepted
international regulations, procedures and practices. Article 211 dealing
specically with pollution from vessels provides in section (2) that ag state
shall adopt laws and regulations for the prevention, reduction and control
of marine pollution caused by ships ying their ags. It also species that
such laws and regulations shall at least have the same eect as that of gen-
erally accepted international rules and standards established through the
competent international organization or general diplomatic conference. In
this respect, based on the worldwide acceptance of the conventions, the
IMO (as the competent authority referred to in the UNCLOS) explains it
to include, inter alia, the SOLAS Convention, the International Convention
on Load Lines 1966 (Load Lines Convention), the International
Convention on Tonnage Measurement of Ships 1969 (Tonnage
Convention), the COLREGs, the STCW Convention and the International
Convention on Maritime Search and Rescue (SAR).61 According to Birnie
and Boyle, the eect of provisions in Article 94 is to make conventions such
as MARPOL and other relevant international standards an obligatory
minimum.62 However, the incentives provided in the UNCLOS for a ag
state to enforce such rules seem not so strong, not to mention imposing more

58 Molenaar believed that although it is provided in the section on the high seas,

the eect should go beyond the high seas. See Molenaar (1998).
59 Article 94(3) of UNCLOS.
60 Article 94(4) of UNCLOS.
61 LEG/MISC/4, 26 January 2005, pp. 1011.
62 Birnie and Boyle (2002, p. 370).
International legal framework 87

severe standards than those required by the international rules. On the other
hand, a ag state may not be willing to do so since if their national rules
became too strict compared with the international standards, their eet
might choose to ag out for some ags with more lenient domestic controls.
Therefore, as ag states, they will lose the economic benets.

4.2.2 Enforcement jurisdiction


Article 217 is on the enforcement by ag states. It provides that the ag state
shall ensure the compliance by vessels ying their ag or of their registry
with applicable international rules and standards and with their national
laws and regulations. In addition, it species that the ag state shall perform
such enforcement irrespective of where a violation occurs, even when it
occurs on the high seas.63 The international rules and standards include
requirements in respect of design, construction, equipment and manning
of vessels.64
In case of violation, the vessel shall be prohibited from sailing by the ag
state.65 However, due to economic considerations, one may wonder if a ag
state will actually exercise such power with regard to its own eet.
Moreover, given the fact that the pollution caused by a vessel is often
outside the territory of its registered country and may inuence the marine
environment of others, the incentives for a ag state to enforce may be
rather low, not to mention the (probably low rate of) detection activities by
a ag state. The practice of ags of convenience which will be discussed
below further worsens the scenario. The existence of these so-called open
registry or ag of convenience states has become a common practice nowa-
days, and their control as a ag state over vessels registered there or ying
their ags is often criticized as being too lenient.
UNCLOS does provide for the right of other states to request the ag
state to investigate any alleged violation.66 However, the chances of other
states to have access to such a ship whereby the violation may be detected
are restricted, and shall be examined in view of the coastal state and port
state jurisdiction. Probably only when a ship voluntarily enters a port, may
the port state have the opportunity to inspect the ship. Moreover, the ag
state shall only promptly inform the requesting state of its action and
outcome.67 In case of non-action of the ag state, there seems to be no
remedy in UNCLOS.

63 Article 217(1) of the UNCLOS.


64 Article 217(2) of the UNCLOS.
65 Article 217(2) of the UNCLOS.
66 Article 217(6) of the UNCLOS.
67 Article 217(7) of the UNCLOS.
88 International environmental law and conventions

Therefore, the enforcement of international safety regulations relying on


the exercise of ag state jurisdiction, irrespective of where the ship is sailing
proves a very weak enforcement mechanism.

4.2.3 Registration of a ship


Article 91 of UNCLOS refers to the need for a genuine link between the
state of nationality and the ship. However, this ambiguous provision has
not prevented the emergence of ag of convenience (FOC) vessels, where
registration, rather than ownership, management, nationality of the crew
or the ships operational base, is the only substantial connection.68 The
practice of ags of convenience has centuries of history. It probably dates
back to the 16th century, and has been widely used and become a general
practice by the beginning of the 20th century. It is often used to overcome
political restrictions or for economic benets.69
Flags of convenience have been a source of controversy in maritime
practice for a long time. Around 54 per cent of the worlds tonnage is reg-
istered with the open registry states thus ying a ag of convenience.70 Lots
of the pollution incidents, especially oil spills are often caused by tankers
registered in open registry states. The Erika and Prestige are examples of
some recent cases of this sort. Nevertheless, it would probably be unfair to
relate FOC automatically to substandard ships.
China is a close registry country. It means that contrary to the practice
of open registry, in order for a ship to register in China there are strict
requirements.71 In addition to the ownership requirement and management
of the company requirement under the Ship Registration Regulation, there
are also strict crewing regulations. Chinese ships must be manned by

68 Birnie and Boyle (2002, p. 360).


69 For an analysis of the history of ag of convenience, and in particular that
of the two traditional open registry states, Panama and Liberia, see Llcer (2003,
pp. 51323); see also zayir (2000, pp. 11117).
70 Llcer (2003, p. 513).
71 The Ship Registration Regulation of the Peoples Republic of China, 1994

provides in Article 2 that only ships with one of the following links may be regis-
tered as a Chinese ship with the right to y its ag:
a. ships owned by citizens of the PRC whose residences or principal places
of business are located within Chinese territory;
b. ships owned by enterprises with legal person status established under the
Chinese laws and whose principal places of business are located within Chinese ter-
ritory; if foreign investment is involved, the proportion of registered capital con-
tributed by the Chinese investors shall not be less than 50%; or
c. ships owned by Chinese Government and public organizations;
d. other ships for which the Bureau of Harbour Superintendency deems that
registration is necessary.
International legal framework 89

Chinese crews, although foreign crews can be employed with special per-
mission from the Bureau of Harbour Superintendency.72
It is obviously dicult for a foreign vessel to benet from the Chinese
ag. However, the strict registration requirement does not prevent the use
of FOC for Chinese shipowners. There is no regulation against the use of
FOC in Chinese law. There are even data showing large numbers of vessels
whose beneting owners are actually of Chinese origin but in practice use
other ags.73

4.2.4 Evaluation
A ag state under UNCLOS may prescribe requirements with regard to
construction, design, equipment and manning of vessels, and enforce such
rules. This only sets up minimum standards for a ag state. In theory, a ag
state may adopt more stringent rules than the international conventions.
However, few states have done so. This might be explained by the trans-
boundary externality, and the fact that the enforcement mechanisms as
stipulated in the UNCLOS do not oer sucient incentive for a ag state
to eectively implement the international rules upon ships registered
therein. Some argued that the ag state jurisdiction serves as a safeguard
for the enforcement of international rules, particularly in waters beyond the
national jurisdiction of the coastal state, i.e. on the high seas.74 This seems
a too optimistic view.
Moreover, the ag state jurisdiction prescribed in the UNCLOS does not
go further beyond what MARPOL has already demanded. Hence, some
argue that there is nothing novel in the UNCLOS provision in this respect.75
China has ratied most of the important international conventions
related to vessel-source marine pollution. This includes the MARPOL,
SOLAS, OSPR and the CLC. However, China has not ratied the Fund
Convention so far. This may pose the problem that if an incident caused oil
pollution damage to China, the victims will not receive as much compen-
sation as their international counterparts. Hence, if Chinese victims
suered pollution damage caused by tankers ying foreign ags, the exter-
nality caused by foreign ags will lead to costs born by Chinese victims due
to the low compensation amount under Chinese law and the fact that there
is no compensation fund available in China. The consequence of such a ag
state jurisdiction does not seem so optimal.

72 Article 7 of the Ship Registration Regulation of PRC. The Harbour

Superintendency is now changed to the Maritime Safety Administration.


73 See in this respect, Tan (2006).
74 De la Fayette (1996, p. 13).
75 Birnie and Boyle (2002, p. 370).
90 International environmental law and conventions

China has legally made a distinction between the internal waters and
those involved in international trade, being the ships involved in interna-
tional trade should follow international standards, whereas the domestic
eet only follows the domestic standards which are often lower than those
required by international law. This distinction was originally designed to
protect the domestic interest. However, as we may see it leads to the dis-
crepancy between these two types of eet in the sense that the international
eet and the domestic eet apply dierent standards. Although for the
transboundary marine pollution, it may be more important to impose and
enforce strict standards on the international eet, problems arise as the
lenient requirements for cabotage vessels do not facilitate the eective
enforcement of international rules and creates opportunity for speculation.
Hence, China may wish to mitigate such discrepancy. With respect to oil
pollution compensation, such a trend is emerging. The Ministry of
Communication has carried out a study concerning the establishment of a
domestic fund.76 One result of this study suggested imposing international
standards (now only applicable to international vessels) to all sorts of
vessels including both domestic line and international trade vessels.

4.3 Coastal state jurisdiction

4.3.1 Overview
The jurisdiction of a coastal state over vessel-source marine pollution
varies with its sovereign rights over the maritime zones, despite the fact that
there is no clear denition of a coastal state in the UNCLOS.
One can understand that the interest of a coastal state is a totally
dierent one than the one of the ag state. Whereas we argued that a ag
state may create the well-known transboundary externality by having little
incentives to impose stringent restrictions upon ships sailing under their
ag which merely cause damage elsewhere (a typical denition of the exter-
nality), the reverse may be true for coastal states. A coastal state may be
primarily worried about pollution caused to their states of which it is the
primary victim. Hence, coastal states may to the contrary have all the incen-
tives to impose very severe restrictions upon ships sailing within their
waters. A problem that could arise in that respect is that those limitations
could go further or could be dierent from what other countries require, in
which case regulations by the coastal state could eectively restrict free nav-

76 Between 2000 and 2001, under the auspices of the Ministry of

Communication, research on the establishment and implementation of a Chinese


compensation system for ship source oil pollution damage was carried out.
International legal framework 91

igation. Hence, one understands that one important goal of UNCLOS was
to restrict the possibilities for coastal states to impose unilaterally far-
reaching pollution control regulations which would eectively limit free
navigation. Already the fact that UNCLOS harmonizes these possibilities
for coastal states by indicating for which type of regulations the coastal
states have jurisdiction, is an important step forward.

4.3.2 Internal waters and ports


The coastal states are empowered to determine the conditions of entry for
foreign vessels into their ports or internal waters.77 The rationale for such
a provision according to De la Fayette is that a port is situated in a states
internal waters, which forms part of its territory. Since internal waters are
assimilated to the territory of a state, a port is subject to the states full ter-
ritorial sovereignty.78
This right is recognized in conventions other than the UNCLOS. For
example, the SOLAS Convention provides that port authorities may with-
hold permission to dock if a ship does not comply with the requirement of
carrying its safety certicates, MARPOL Convention recognizes that a
state may deny access for a foreign tanker to its ports if there is clear ground
to believe that she does not comply with the provisions in the MARPOL
Convention.79
The coastal states right to impose its own requirements as conditions for
foreign vessels to enter its port or internal waters has been well made use of
by, for example, the United States. In the Oil Pollution Act 1990, the United
States has legitimately imposed more severe tanker structure conditions,
such as a double hull for a tanker in order to enter its port. This was origi-
nally opposed by some industry lobby groups and some oil giants even
threatened to lower the amount of oil they would import into the United
States.80 However, none of this really happened. And indeed, thanks to
such a strict requirement, the tankers entering US ports are equipped with
a double hull which supposedly will reduce the risk of spilling oil in case of
an incident. The result is that the tankers not equipped with double hulls
transferred their trade area to other parts of the world, including Europe
and Asia. The EU, after witnessing some dramatic oil spill incidents (par-
ticularly the Erika and the Prestige incidents which were both caused by

77 Article 211(3) of UNCLOS. The only exception is for vessels in distress,

which have a right to take refuge in the nearest port.


78 For an analysis of the coastal states right to lay down conditions for entry

into its ports, see De la Fayette (1996, pp. 122).


79 De la Fayette (1996, p. 5).
80 Weinstein (1994, p. 139).
92 International environmental law and conventions

single-hull tankers), also decided to promote double-hull tankers and to


accelerate the schedule to phase out the single-hull tankers which was more
vigorous than the international schedule. Under the stress of the EU
activism to phase out the single-hull tankers earlier, the IMO decided to
accelerate the schedule to phase out single-hull tankers on a worldwide
scale.81 This is a typical example of how coastal state legislation interacts
with international laws.

4.3.3 Territorial sea


The UNCLOS empowers the coastal states to adopt their national stan-
dards and anti-pollution measures within their territorial sea.82 The coastal
states may thus for instance designate particular sea lanes or regulate the
passage of ships through the trac separation system.83
However, this right is not unrestricted. UNCLOS also lays down some
restrictions for the coastal state to exercise such power. First, it should not
impair the right of innocent passage of foreign ships or discriminate
against ships of any state or ships carrying certain cargoes.84 Hence, the
coastal state may not simply close the territorial waters, even where the
cargo carried by a foreign vessel presents a potential environmental risk,
as in the case of HNS or oil tankers. According to the UNCLOS, the most
a coastal state could do is probably to take certain precautionary mea-
sures to minimize the risks: it may, for example require ships carrying
inherently dangerous cargo to conne their passage to specied sea
lanes.85
Secondly, the coastal state does not have the right to adopt laws and reg-
ulations on CDEM standards unless they are giving eect to generally
accepted international rules or standards, although they may do so in

81 Wang (2004, pp. 292303).


82 Article 21(1) of UNCLOS provides that The coastal State may adopt laws
and regulations, in conformity with the provisions of this Convention and other
rules of international law, relating to innocent passage through the territorial sea,
in respect of all or any of the following: . . . (f) the preservation of the environment
of the coastal State and the prevention, reduction and control of pollution thereof.
Further, Article 211(4) also contains provision on the coastal state jurisdiction. It
reads Coastal States may, in the exercise of their sovereignty within their territor-
ial sea, adopt laws and regulations for the prevention, reduction and control of
marine pollution from foreign vessels, including vessels exercising the right of inno-
cent passage. Such laws and regulations shall, in accordance with Part II, section 3,
not hamper innocent passage of foreign vessels.
83 Article 22(1) of UNCLOS.
84 Articles 24(1) and 211(4) of UNCLOS.
85 Article 22(2) of UNCLOS.
International legal framework 93

respect of discharge standards.86 This is probably due to the consideration


that CDEM standards have greater impact on the right of free navigation
than some other standards (for instance the discharge standards).87
As for the enforcement by a coastal state in its territorial sea, UNCLOS
provides in Article 220(2) that only where there are clear grounds to
believe that a vessel when passing the territorial sea has violated the coastal
states laws, the coastal state may undertake physical inspection of the
vessel and when evidence warrants it may institute proceedings including
detention of the vessel. However, as the practical exercise of a right to arrest
ships in passage poses serious danger to the freedom of navigation, it is
rarely used as a means of enforcing anti-pollution measures.88
Hence, it seems a coastal states jurisdiction in the territorial sea is a com-
promise: the coastal state is empowered to control the pollution and navi-
gation to a certain extent, while the innocent passage enjoyed by foreign
vessels remains intact.89

4.3.4 EEZ
Prior to UNCLOS, the area beyond the territorial sea was the high seas and
it was subject to virtually exclusive jurisdiction of the ag state. UNCLOS
has changed the situation by introducing a new maritime zone of exclusive
economic zone (EEZ), extending to 200 nautical miles from the territorial
sea baseline.90 In the EEZ, a coastal state enjoys sovereign rights over the
natural resources and jurisdiction for the protection and preservation of
the marine environment.91 This jurisdiction of a coastal state for vessel-
source marine pollution in the EEZ is restricted to the adoption and
enforcement of laws and regulations conforming to and giving eect to
generally accepted international rules and standards established through
the competent international organization.92
It should be noted that the EEZ regime adopted by the UNCLOS pre-
serves within the EEZ the freedom of navigation which is also enjoyed by
all states on the high seas, rather than the more restrictive right in the ter-
ritorial sea of innocent passage. Coastal states acquire responsibility for

86 Article 21(2) of UNCLOS.


87 Bodansky (1991, p. 750).
88 Birnie and Boyle pointed out that for the purpose of enforcing anti-pollution

measures in the territorial sea, a port state is often called upon as a preferred alter-
native to a coastal state. See Birnie and Boyle (2002, p. 372).
89 Birnie and Boyle (2002, p. 372).
90 Articles 55 and 57.
91 Article 56 of UNCLOS.
92 Article 211(5) of the UNCLOS.
94 International environmental law and conventions

regulating pollution from seabed installations, dumping and other activities


within the EEZ, but their regulatory jurisdiction over vessel-source pollu-
tion is limited to the application of international rules for enforcement
purposes only.93
When there are clear grounds for believing that a vessel has committed
a violation in the EEZ, the coastal state may require the vessel to give infor-
mation regarding its identity and port of registry, its last and its next port
of call and other relevant information required to establish whether a vio-
lation has occurred.94 However, such enforcement by the coastal state in
the EEZ is not without limitation. First, the vessel suspected of a violation
should be navigating in the EEZ of the territorial sea of the coastal
state. The coastal state may exercise its power over EEZ pollution control
only when the vessel is still navigating in its EEZ. Secondly, the power of
the coastal state is limited to a request for information. Only when the
vessel has caused or threatens to cause signicant pollution of the marine
environment, may the coastal state undertake physical inspection of the
vessel.95
Therefore, Bodansky believed that coastal state enforcement of the EEZ
vessel-source pollution legislation is the least favoured option under
UNCLOS and is permitted only when it threatens substantial damage to
the coastal state. Otherwise, the only remedy for the coastal state is to
inform the ag state or the next port of call of the possible violation, so that
these states may take actions to investigate or institute proceedings.96
Another observation concerning the coastal states jurisdiction in the
EEZ is that the UNCLOS provisions leave coastal states considerable lat-
itude in determining what action is justied in individual cases. This may
lead to uncertainty and inconsistency in their use.97 Moreover, the com-
petence enjoyed by coastal states in the EEZ is weaker than that in the ter-
ritorial sea in this respect. For example the coastal state may undertake
physical inspection for violation occurring in the territorial sea while for
the violation in the EEZ the coastal state may only request information.
As a result, the coastal states competence in the EEZ may seem an expan-
sion beyond the territorial sea, but it is actually not as far-reaching as it
seems, because the coastal states competence in the EEZ remains
circumscribed.

93 Articles 208, 210, 211(5) and (6) of UNCLOS.


94 Article 220(3) of UNCLOS.
95 Article 220(5) of the UNCLOS.
96 Bodansky (1991, pp. 75758).
97 Birnie and Boyle (2002, p. 375).
International legal framework 95

4.3.5 High seas


The high seas are free from claims of sovereignty, no state has jurisdiction
there, only the ag state may have jurisdiction over its ships.98 The ag state
has exclusive jurisdiction if a ship causes pollution on the high seas, and the
coastal state is not allowed to take action unless it is threatened by the
damage. This is according to Article 221 of UNCLOS. In case of a mar-
itime casualty, the coastal state is empowered to take measures beyond the
territorial sea, including on the high seas, to the extent that such measures
are proportionate to the actual or threatened damage.99

4.3.6 Evaluation
Depending on the dierent maritime zones, the competence of a coastal state
varies. Basically, with the distance further away from the coast, the coastal
states right to interfere with foreign ships gets weaker. By delimiting the con-
cepts of dierent maritime zones, the UNCLOS in a way creates a certain
barrier to expanding territorial claims of states to high seas areas.100
The concepts adopted in the UNCLOS are the results of eorts to strike
a balance between dierent interests. For instance with respect to territorial
jurisdiction, UNCLOS oers coastal states the power to control navigation
and pollution, while preserving the rights of passage and international
control of CDEM standards.101 The territorial sea under the UNCLOS is
extended in breadth. However, such an extension in itself is not enough to
satisfy the need of coastal states for environmental claims. This is particu-
larly the case for environmental incidents occurring outside of the territorial
waters. Hence, the UNCLOS goes beyond the territorial sea by giving coastal
states the pollution control jurisdiction in a new zone created through the
UNCLOS, being the EEZ. The adoption of the EEZ is thus also a compro-
mise between the more extensive claims of coastal states for environmental
protection and the concerns of maritime states for free navigation.102

98 Weinstein (1994, p. 144).


99 This provision is similar to those in the Intervention Convention.
100 Kolodkin, Andrianov and Kiselev (1988, p. 187).
101 Birnie and Boyle (2002, p. 372).
102 Birnie and Boyle (2002, p. 373) pointed at the fact that at the UNCLOS III

concerning the issue of EEZ, there were at least two groups, one represented by
Canada and Australia and supported by majority of the developing states sought
for a general extension of coastal state legislative and enforcement jurisdiction
beyond the relatively limited changes brought about by the MARPOL. On the
other hand, there was a group of maritime states. Once the coastal states aban-
doned their support for a much broader margin of territorial sea, maritime states
were prepared to accept the principle of extended jurisdiction for specic
purposes.
96 International environmental law and conventions

The provisions of the UNCLOS are considered to set up maximum


standards that a coastal state may apply to foreign ships in its EEZ and
its territorial sea as far as the construction, design and manning of ships
are concerned. This is in contrast to other parts of UNCLOS where the
adopted rules generally contain minimum standards which a state must
apply.103 Hence, the discretion left to a coastal state may be rather
limited in this respect. This again shows the point made in the introduc-
tion that UNCLOS has to strike a balance between interests of coastal
states and the right of free navigation. One can clearly see that the main
focus for UNCLOS was the worry that coastal states would infringe free
navigation, for example in the EEZ. That may explain the
relatively limited right of coastal states to act against vessels liable to
cause pollution.
It seems a major concern of UNCLOS is in fact to limit the jurisdiction
and actions of coastal states as far as the regulation within their waters is
concerned. One should not forget that UNCLOS is primarily concerned
with the law of the sea and therefore with the regulation of free navigation.
Pollution control measures by coastal states can from this perspective limit
free navigation and should therefore (in this UNCLOS perspective) be con-
trolled. The way this jurisdiction of coastal states is controlled within
UNCLOS shows how UNCLOS has attempted to strike the balance
between the shipping interests (of free navigation) and the interests of pol-
lution control (by coastal states). The question is then whether it is not pos-
sible to provide another solution within this trade-environment conict
between shipping interests and interests of victim (coastal) states. To some
extent, that is particularly the reason why to a large extent UNCLOS now
relies on port state jurisdiction.
A coastal state may impose its own requirements as conditions for
foreign vessels to enter its port or internal waters. Complying with such an
UNCLOS provision, China as a coastal state designates only certain ports
as being open for international trade,104 and it imposes its conditions on
foreign ships entering its ports. In contrast, the United States using this pro-
vision has lawfully imposed a more vigorous double-hull tanker design as
a condition for foreign ships to enter its ports, which in turn triggered some

103 Nollkaemper and Hey (1995, pp. 2845).


104 In 1984, the Chinese government designated 14 coastal cities open for inter-
national trade: Tianjin, Dalian, Shanghai, Qinhuangdao, Yantai, Qingdao,
Lianyungang, Nantong, Ningbo, Wenzhou, Fuzhou, Guanzhou, Zhanjiang,
Beihai. In 1987, Weihai was opened for international trade as well. In addition,
cities such as Shenzhen, Zhuhai, Shantou, Xiamen and Hainan are the so-called
special economic zones which are also open for international trade.
International legal framework 97

change at the international level. This may provide some useful insight for
the Chinese government when adopting or revising domestic laws and reg-
ulations on the entry conditions to its ports. However, although the Chinese
government stresses the importance of measures against marine pollution,
so far the Chinese legislation concerning marine environmental protection
has not been more proactive than the international laws.

4.4 Port state jurisdiction

4.4.1 UNCLOS
Although there is no denition of coastal state or port state in the
UNCLOS, some scholars tried to make a distinction between these two
concepts: port state jurisdiction is based on the presence of a vessel in port;
when a pollution incident aects a states coastal waters, the jurisdiction
exercised by the aected state is that as a coastal state.105
A major dierence between awarding jurisdiction to coastal states and to
port states is that coastal states may have merely an interest in issuing
restrictive pollution control regulations on ships, thus limiting free naviga-
tion within their waters, whereas port states may have a more balanced
interest. To an important extent, the interest of port states can be aligned
with the interests of shipping nations since ports clearly have interests as
well (more vessels calling at a port normally means more economic benet
for the port state). On the other hand, port states can be coastal states as
well and thus can also be victimized by pollution incidents. One can there-
fore notice, as will be explained below, an important shift from merely ag
state control towards port state control.
One major conict of interest at the UNCLOS III negotiations was that
the maritime states wanted to maintain the freedom of navigation as much
as possible, while the coastal states wanted more power for anti-pollution
legislation and enforcement. It was also recognized that the problem of
non-compliance with international laws and regulations could not be reme-
died by ag state enforcement alone. However, to allow coastal states more
authority to arrest and prosecute vessels for pollution oences, for example
to stop and board a vessel navigating in the EEZ, may present a threat to
the freedom of navigation. Thus, port state control appeared to be a more
attractive alternative. As long as the vessel is in port and is allowed to
proceed to sea subject to nancial guarantee,106 the investigation and pros-
ecution by the port state does not constitute a serious threat to the free

105 Bodansky (1991, pp. 7389).


106 Articles 220(7), 226(1)(b), and 292 of UNCLOS.
98 International environmental law and conventions

navigation right. Moreover, it eliminates the need for reliance on the ag


state. Hence, port state control was adopted as a corrective measure to
remedy the inadequacy of ag state jurisdiction.
Article 218 gives the port state the express power to investigate and insti-
tute proceedings against violations even when the discharges occurred
outside the internal waters, territorial sea or exclusive economic zone.107
In contrast, a coastal states jurisdiction in the territorial sea and the EEZ
has always been limited to a certain extent.
The exercise of port state jurisdiction for the purpose of correcting
deciencies in the implementation (particularly by the ag state) of safety
rules is established in the main IMO conventions. These include, inter
alia, Load Lines Convention 1966, Tonnage Convention 1969, SOLAS
Convention, MARPOL Convention and the STCW Convention. These
conventions provide that the port state is entitled to verify the certicates
of vessels attesting compliance with safety provisions. They also empower
the port state to inspect the ship if the certicates are not in order or if there
are clear grounds to believe that the condition of the ship or of its equip-
ment does not correspond substantially with the particulars of the
certicates or if they are not properly maintained.
Another point concerning Article 218 is that the competence of the
port state is to prosecute discharges in violation of applicable rules and
standards. This raises the question as to what kind of rules are applica-
ble as far as port state enforcement is concerned. One more conservative
view is that if the ag state or operating authority state of the vessel in
question is not a party to certain convention, the port state may not
enforce such laws against the vessel.108 Another more expansive interpre-
tation of Article 218 is that the port state may enforce international dis-
charge standards against any vessel, regardless of whether the ag state
has accepted or prescribed these standards.109 This has become a gener-
ally accepted view in recent years of practice.110 The port state enforce-
ment of international laws dealing with maritime safety and pollution
prevention has thus become an important factor in strengthening inter-
national standards.111

107 Article 218(1) of UNCLOS.


108 Bodansky (1991, p. 761).
109 See De la Fayette (1996, p. 14); Birnie and Boyle (2002, p. 375).
110 MARPOL Convention also provides in Article 5 that port state control over

certicates shall be applied to the ships of non-parties as may be necessary to


ensure that no more favourable treatment is given.
111 Birnie and Boyle (2002, p. 376).
International legal framework 99

4.4.2 MOUs
Port state control is co-ordinated regionally on the basis of a Memorandum
of Understanding (MOU) signed by the government administrations con-
cerned. In addition to the well-known Paris MOU which mainly concerns
Western European countries and Canada, there are MOUs for regions
including: Latin America (Vina del Mar Agreement 1992), the Asia and the
Pacic (Tokyo MOU, 1993), the Caribbean (1996), the Mediterranean
(1997), the Indian Ocean (1998), West and Central Africa (Abuja MOU,
1999) and the Black Sea (2000).112 These MOUs do not create new con-
ventions, but are only an administrative framework for cooperation among
the states involved.
The MOUs require a certain inspection rate on an annual basis. The
MOU states also share an information system and they select ships for
special controls once they are in ports of MOU states based on certain cri-
teria, such as the hazards the special types of ships may pose and the risks
that certain ags may pose.113 Information about substandard ships is sys-
tematically exchanged among these states so that, for example, restrictions
on port entry imposed by one port state cannot be readily circumvented by
entry to another.

4.4.3 Evaluation
The notion of port state jurisdiction was initially developed by the IMO as
a remedy to correct deciencies in the exercise of ag state jurisdiction
resulting in non-compliance with safety and anti-pollution regulations by
foreign ships voluntarily in port. The use of port state control as a means
of eliminating sub-standard shipping is considered a positive step in the
development of marine pollution control.114 Especially given the practice
of ag of convenience in the shipping industry (shipowners may register
their vessels under the ags of open registry such as Liberia, Panama or
Cyprus, as a means of avoiding the more stringent survey and certication
requirements by traditional maritime states), eective port state control
may be useful in eliminating such deciencies.115
Port state control may have the advantage that it can ensure prosecution
for violation where the ag state is reluctant to do so, and/or where the
coastal state is unable or incompetent to act. One result of awarding the
port state the jurisdiction to deal with pollution incidents on the high seas

112 For an analysis of the port state control procedures, see Kiehne (1996,

pp. 21724).
113 Kiehne (1996, p. 221).
114 Wonham (1996, p. 378).
115 Wonham (1996, p. 382).
100 International environmental law and conventions

is that the ag state no longer enjoys exclusive jurisdiction over all high seas
oences. The port state jurisdiction is thus considered a form of universal
jurisdiction, concurrent with that of the ag state.116 However, this is not
concurrent jurisdiction in the ordinary sense, where either party is entitled
to prosecute. Except in cases of major damage to a coastal state, the ag
state under the UNCLOS has in all cases a right of pre-emption which
enables it to insist on taking control of any prosecution. It must continue
the proceedings, and it loses the right if it repeatedly disregards its obliga-
tion of eective enforcement of international regulation. Nevertheless, in
most cases it remains the ag state which will determine whether proceed-
ings by coastal states or port states are to be allowed.117
Nollkaemper and Hey argue that the UNCLOS imposes minimum stan-
dards for the prescriptive jurisdiction of port states and it imposes certain
maximum standards for the enforcement jurisdiction of port states (Article
211 (3)). For example, a port states enforcement jurisdiction with respect
to violations committed beyond its territorial sea by a ship ying a foreign
ag and which is in one of its ports is limited to violations of applicable
international rules and standards (Article 218 (1)) as well as by certain safe-
guards (Article 218 (4) and 223233). The latter ensures that the ag state
is the primary entity responsible for instituting proceedings against ships
ying its ag, or if the proceedings relate to a case of major damage to the
coastal state (Article 228).118
China signed the Tokyo MOU on 1 December 1993 together with 17
maritime authorities in the Asia-Pacic region. This MOU entered into
eect on 1 April 1994. The Chinese maritime authority has carried out the
inspection required by the MOU. On the other hand, among all the
Chinese ag vessels that were inspected in the year 2005, only 0.82 per cent
were detained, which is much lower than the regional average 5.21 per
cent.

4.5 Comparative summary

The above analysis implies that a state in a dierent capacity as a ag,


coastal, or port state may have dierent degrees of power to enforce inter-
national laws and regulations on transboundary vessel-source marine pol-
lution. However, such a distinction may be useful only for purposes of
analysis. The distinction between a coastal state and a port state especially

116 Birnie and Boyle (2002, p. 376).


117 Birnie and Boyle (2002, pp. 37677).
118 Nollkaemper and Hey (1995, p. 291).
International legal framework 101

is more legal than practical. Moreover, a state may have various interests at
stake. This is the case for China. It is a state with a long coastline; hence
one may argue it is a coastal state. Along the east coast of China, there are
many ports open for international trade, thus China shall also act as a port
state. On the other hand, China has a big merchant eet as well. Hence, it
may also have an interest in exercising its power as a ag state.
In addition, when a state raties an international convention establish-
ing marine pollution standards, it does not do so in its capacity as a coastal
or a port state. The relevant international rules are to be applied by a ag
state as minimum standards and by a coastal state or port state as
maximum standards.119
In most conventions on transboundary vessel-source marine pollution,
as in the UNCLOS, it is the ag state that should be primarily responsible
for the implementation of the conventions. They have obviously failed in
many cases, especially given the lenient control from some open registry
states. Lord Donaldsons inquiry also suggested that the ag state would be
the ideal means of enforcing standards, but due to its insuciency, port
state control should be strengthened as an insurance policy for states which
receive a large tonnage of foreign-agged ships.120
In contrast to the situation with coastal state jurisdiction, the most
important IMO conventions include provisions which regulate the features
of port state jurisdiction and the extent to which such jurisdictions should
be exercised. Port state jurisdiction is essentially a concept of a corrective
nature since it aims to correct the non-compliance or ineective ag state
enforcement of IMO regulations by foreign ships voluntarily in port.

5 CONCLUDING REMARKS

From the above analysis, we may reach the conclusion that a large
number of conventions have been adopted to tackle transboundary vessel-
source marine pollution. These conventions constitute the international
legal framework, and it has covered various areas of the issue, from pre-
vention ex ante to liability and compensation ex post. Some of these con-
ventions have been developed since the 1960s. Years of experience
have illustrated the gaps or insuciencies of the system. Hence, at least
some of these insucient aspects have been remedied. However, the con-
tinuing occurrence of pollution incidents reveals another problem with the

119 Nollkaemper and Hey (1995, p. 291).


120 Warren and Wallace (1994, pp. 525, 553).
102 International environmental law and conventions

international regime, being the eective application of the existing conven-


tions. So the eective implementation and compliance by state parties and
private parties whose behaviour they regulate has become the focus of the
international legal framework on transboundary vessel-source marine pol-
lution in recent years.121 This complies with the IMO working guidelines in
the 2000s.122
The analysis also indicated that the current legal regime does not provide
sucient incentive for the ag state as the primary actor to implement
international rules and standards. The coastal state jurisdiction varies with
the maritime zones. However, it has always been circumscribed somehow
mainly in order to avoid the infringement on the right of free navigation.
The port state control should therefore be strengthened to remedy the
insucient incentive prescribed for the ag state. As suggested by
Bodansky, the port state has both economic and environmental interests at
stake. Hence, it has more chance to strike a better balance between the
various interests.123
Recognizing the weakness of implementation and enforcement of the
international rules, the IMO has adopted a number of measures to assist in
implementation and compliance. First, the continuous amendments of
existing instruments respond in part to problems in implementation and to
new circumstances requiring adjustments in implementation. Secondly, the
many soft law instruments, such as codes, guidelines and manuals are
designed to assist in the implementation of the agreements to which they
apply. Thirdly, because many ag states and shipowners are not complying
with the legal requirements, the IMO has been encouraging the strength-
ening of the port state control system, whereby ships are inspected in ports
to determine their conformity to international standards, as well as its
extension to all regions of the globe. IMO also established a Subcommittee
on Flag State Implementation (FSI) reporting to both the MSC and the
MEPC to encourage and assist ag states to implement their interna-
tional legal obligations concerning ship safety and marine environment
protection.124
The reader should bear in mind what was mentioned in the introduction.
This being that the purpose of the system as it has been described above
has to an important extent been to strike a balance between economic and

121 See also De la Fayette (2001, p. 221).


122 See, for example, Resolution A.900 (21) of the IMO Assembly announcing
the objective of the Organization in the 2000s; it has identied the implementation
as the main challenge for the future.
123 Bodansky (1991, p. 739).
124 De La Fayette (2001, pp. 2212).
International legal framework 103

environmental interest within the marine protection area, translated in the


conict between shipping interests and the interest of coastal states which
can be victimized by pollution. To some extent, one can notice how the
various conventions have dierent accents. MARPOL is clearly more occu-
pied with environmental protection, whereas UNCLOS main interest is
probably rather the protection of free navigation, fearing overactive pro-
tective measures by coastal states. To some extent, one can argue that the
result of this balancing process can be found in awarding jurisdiction to
port states, which may have both an interest in shipping and in environ-
mental protection as well to the extent that they can be victimized by pol-
luting activities within their territory.
Again, a point made in the introduction should be reiterated. A large part
of international law dealing with transboundary vessel-source pollution
(and therefore of this chapter) deals with jurisdictional issues. A totally
dierent, but equally important question which would require another
chapter is to what extent the system as it has been set up at the international
level is indeed eective in the protection of the marine environment. There
are some obvious weaknesses within the system itself, which are precisely the
result of the fact that many rules on jurisdiction do not have as a main goal
the protection of the marine environment, but rather safeguarding naviga-
tion interests from overly protective national environmental measures. Also,
some inherent weaknesses remain, for example as far as jurisdiction on the
high seas is concerned. The states realized that the traditional competence
of ag states for dealing with pollution incidents on the high seas may be
ineective and shifted powers (under Article 218 of UNCLOS) to the port
states. However, a question which will always arise is to what extent the port
state will eectively be able to enforce measures upon ships on high seas.
A nal judgment on the eectiveness of the current international regime
which is in place can only be made when empirical research is added which
indicates to what extent the international conventions have been eective in
reducing the marine pollution problem. On the one hand, one can of course
notice (on the basis of the historical sketch provided above) that the inter-
national framework for protecting the marine environment against vessel-
source pollution has always intensied. On the other hand, there is ample
empirical evidence that pollution incidents are still very frequent today.125
Moreover, one also has to realize that the eectiveness of the international
regime depends to an important extent upon its implementation by the
signatory states. In this respect, the eectiveness will also depend upon the

125 This is at least the case for oil pollution, but probably for pollution resulting

from other substances as well. For an overview of empirical data in that respect see
Hendrickx (2007).
104 International environmental law and conventions

sanctions imposed by signatory states upon violation of their national legis-


lation. In the literature, it is noticeable that, to some extent, states used only
to impose nes in case of violation, whereas moreover, these nes were
largely insured by Protection and Indemnity Clubs (P&I Clubs). This may of
course largely limit the eectiveness of the enforcement regime.126
One can therefore understand that within some regional regulations,
more particularly within the EU, increasingly obligations are also imposed
upon states to use particular sanctions, more particularly criminal sanc-
tions, on the violation of regulations with respect to the protection of the
marine environment. This shows that the nal eectiveness of the interna-
tional regime will also to a large extent depend upon enforcement, which
unavoidably takes place at the level of the participating states.
Of course, the question also arises as to what some lessons of the inter-
national legal framework can provide for China. The discrepancy between
a purely domestic and a transboundary pollution case corresponds with the
nding at international level that when a state is acting in its capacity as a
ag state, its incentives to implement the international conventions con-
trolling transboundary pollution are extremely low. The new laws and reg-
ulations on better protection of the Chinese coast from pollution caused by
externality are still in process. Hopefully, this new on-going legislation will
learn from the international experience to correct the externality in trans-
boundary marine pollution in a more eective way.

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5. ILC proposal on the role of origin
state in transboundary damage
Gou Haibo1

1 INTRODUCTION

With industrialization and development of technology, there exist activi-


ties that are socially desirable and not prohibited by law, but inherently
dangerous, with the potential of causing injurious consequences. Since
1978, the International Law Commission (the Commission or ILC) has
considered the topic International liability for injurious consequences
arising out of acts not prohibited by international law. Subsequent to the
adoption of draft Articles on Prevention of Transboundary Harm from
Hazardous Activities (draft Articles on Prevention)2 in 2001, the
Commission adopted draft Principles on the Allocation of Loss in the
Case of Transboundary Damage arising out of Hazardous Activities (the
draft Principles)3 at its fty-eighth session in 2006, thus nalizing its review
of the topic. The draft Principles, being general and residual in character
and cast as a non-binding declaration of principles,4 propose a scheme of
loss allocation of transboundary damage, spreading the loss among mul-
tiple actors.

2 LOSS ALLOCATION SCHEME PROPOSED


BY ILC

The draft Principles place primary liability on the operator, i.e. any person
in command or control of the hazardous activity at the time the incident

1 Department of Treaty and Law, Ministry of Foreign Aairs of China. The

views expressed herein do not necessarily represent those of the institution the
author serves.
2 ILC Report on the Work of its Fifty-third Session, pp. 366436.
3 ILC Report on the Work of its Fifty-eighth Session, pp. 10182.
4 General commentary to the Draft Principles, para 11, ibid. p. 113.

107
108 International environmental law and conventions

causing transboundary damage occurs.5 The actual operator may vary at


dierent times,6 and may include a parent company or a State.7 Primary
liability may be channelled to other entities,8 but for sake of simplicity, the
term operators liability is sometimes used in commentary to the draft
Principles, which will be followed in this chapter. The operator liability
should be strict, without the requirement of proof of fault.9
The principal ground for operators liability is the belief that one who
created high risks seeking economic benet must bear the burden of any
adverse consequences of controlling the activity, and the party with the
most eective control of the risk at the time of the accident or who has the
ability to provide compensation is made primarily liable.10
The next actors envisaged by the Commission to share the loss are
nancial institutions and industry funds.11 The role of both nancial insti-
tutions and industry funds may be deemed as an extended form of oper-
ators liability, in a collective way, as resources of those institutions and
funds are mainly premiums or contributions from operators of dangerous
activities, and such premiums or contributions will be internalized into the
costs of the operators and shared by the public who enjoy their product.

5 See Principle 2(g), denition of the term operator. The denition is based on

a factual determination as to who has use, control and direction of the object at the
relevant time. The term command connotes an ability to use or control some
instrumentality. The term control denotes power or authority to manage, direct,
regulate, administer or oversee. See commentary to Principle 2, paras 32, 33, ibid.
pp. 13940.
6 As under Basel Protocol on Liability and Compensation for Damage

Resulting from Transboundary Movements of Hazardous Wastes and their


Disposal, waste generators, exporters, importers and disposers are all potentially
liable at dierent stages in the transit of waste. See http://www.basel.int/pub/
protocol.html.
7 See commentary to Principle 2, para. 33, supra n. 3, pp. 13940.
8 For example, under the International Convention on Civil Liability for Oil

Pollution Damage (CLC) 1969, liability is channelled to the ship owner, not the
charter, who may be the actual operators, see 8 ILM 453(1969).
9 See Principle 4, para. 2. The reason for strict operator liability is that, as haz-

ardous activities involve complex operations and carry with them certain inherent
risks of causing signicant harm, it would be unjust and inappropriate to make the
claimant shoulder a heavy burden of proof of fault or negligence in respect of
highly complex technological activities whose risks and operation are guarded as
secret, supra n. 3, pp. 1558.
10 Commentary to Principle 4, paras 10, 11, supra n. 3, pp. 1545.
11 In paragraph 3 and 4 of Principle 4, State of origin are encouraged to require

operators to establish nancial security, such as insurance, and industry-wide funds


at the national level. And in Principle 7, States are encouraged to conclude specic
agreements establishing industry funding at global, regional or bilateral level.
ILC proposal on transboundary damage 109

The main dierence between their roles may be that, while compensation
may be claimed directly against institutions providing nancial security, in
case of industry funds the funding is supplementary to meet claims of com-
pensation only when the resources of the operator are not adequate to
provide compensation.12
In theory, nancial security and industry funds are benecial for all
stakeholders, being eective ways for victims to get compensation, for oper-
ators to spread risks and manage uncertainties, and to provide a sizeable
market for the insurance industry.13 In practice, insurance coverage is avail-
able in some jurisdictions, such as the United States and in Europe, and the
typical example of an industry fund can be found in the eld of transport
of oil by sea. However, in most developing countries, such nancial mech-
anisms still need to be much more developed due to the irrevocable increase
of industrial and social costs of development.
Then there comes the new proposal on the state of origin as an actor for
loss allocation. The Commission suggested in paragraph 5 of Principle 4
that, in the event that resources of the previous actors are insucient to
provide adequate compensations, the state of origin should also ensure that
additional nancial resources are made available. It is recognized that the
role of the origin state is a proposal for the progressive development of
international law regarding state responsibility. Due to the general nature
of the draft Principles and given the simplicity of the commentary on this
proposal,14 further study on the drafting process and the international law
sources available during the process is needed for a better understanding of
what development has been proposed, and why.
It should be noted that there is another potential actor that was not
included in the draft Principles, but implied. While the Commission makes
it one of the main purposes of the draft Principles to ensure prompt and
adequate compensation to victims of transboundary damage, it is pointed
out in the commentary that, it is ipso facto adequate as long as the due

12 Commentary to Principle 4, paras 34 and 35, supra n. 3, p. 164.


13 See Proposal for a Directive of the European Parliament and of the Council
on Environmental Liability with regard to the prevention and remedying of envi-
ronmental damage, COM(2002) 17, paras 79.
14 See Commentary to Principle 4, paras 35, 36, 38, 39, supra n. 3, pp. 1646.

Paragraph 38 of commentary to Principle 4 is the only paragraph focusing on the


role of State of origin, paras 35, 36 and 39 are also relevant, which explained that
para. 5 of Principle 4 does not directly require the State of origin to set up govern-
ment funds, the additional resources could be out of public funds, as part of
national budget, or be developed through some form of taxation on consumers of
the products and services the industry generates and supports in case of very special
hazardous activities.
110 International environmental law and conventions

process of the law requirements are met. As long as compensation given is


not arbitrary, and grossly disproportionate to the damage actually suered,
even if it is less than full, it can be regarded as adequate. In other words,
adequacy is not intended to denote suciency.15 Thus prompt and ade-
quate compensation in essence is equitable and reasonable compensation.
Victims may bear part of the loss after due process.

3 COMPROMISE PROPOSAL ON THE ROLE OF


ORIGIN STATE
3.1 Sources of international law on the role of state

During the drafting process, there were some international agreements


available on liability for specic activities likely to cause transboundary
damage, usually about civil liability, and often without universal participa-
tion. Treaty rules on state liability are rare. The issue of state liability is
avoided in some treaties, an example is the 1979 Convention on Long-
Range Transboundary Air Pollution, which explicitly states in a footnote
that it does not contain a rule on state liability as to damage.16 Some con-
ventions established requirements, generally or specically, that state
parties should endeavour to prevent, control and reduce transboundary
pollution.17 Such treaties do not establish the obligation not to pollute
(obligation of result), but only obligation to prevent, control and reduce
pollution (obligation of conduct), breaching of which involves responsi-
bility for fault. In the eld of outer space, treaty provisions do establish
absolute liability for the launching state,18 the principal reason of which is
that space operations are mainly conducted and controlled by states.19 And
it can hardly be deemed as a precedent for state liability in other elds, nor
for state liability for activities of its nationals.

15 Commentary to Principle 4, para. 8, supra n. 3, p. 154.


16 18 ILM 1445 (1979), reproduced from UN Doc. ECE/HLM.1/R.1 of
October 22, 1979.
17 Examples include UN Convention on the Law of the Sea, 21 ILM

1261(1982); UN Convention on the Prohibition of Military or any other Hostile


Use of Environmental Modication Techniques, 16 ILM 88 (1977).
18 Article II of the 1972 Convention on International Liability for Damage

Caused by Space Objects provides absolute liability without a wrongful act for
damage caused on the surface of the earth or to aircraft in ight. See 10 ILM
965 (1971), reproduced from the Report of the Legal Sub-Committee on the Work
of Its Tenth Session (7 June2 July, 1971), UN Doc. A/AC.105/94 of July 8, 1971.
19 Xue Hanqin (2003, at p. 309).
ILC proposal on transboundary damage 111

Judicial and diplomatic practices did exist relating to transboundary


damage, but their solutions obviously did not depend on consistent principles.
In some cases, when a government accepted it would pay for damage, any ref-
erence to the problem of responsibility was avoided. One example is the acci-
dent of the Soviet spaceship Cosmos 954.20 In other cases, such as the Marshall
Islands case,21 the state paid but never admitted its international responsibil-
ity and made it clear that its only intention was to pay compensation ex gratia.
There are still other cases where states didnt pay at all, such as the acci-
dent at the Chernobyl nuclear power plant.22 The only case usually cited
supporting state liability is the Trail Smelter case.23 Currently, there are
dierent views about whether Canada had actually accepted liability for
the damage. And it was reasonably argued that, if that case were to arise
today, it seems more likely that it too would be resolved by transboundary
civil actions, once equal access for transboundary claimants in such cases
had been assured.24 As pointed out, most of the cases under the consider-
ation of the Commission for international liability are not actually true
cases of lawful acts as categorized by it.25
In the eld of soft international law, Principle 21 of the Stockholm
Declaration and other instruments that follow this model26 have raised

20 On 24 September 1978, the debris of Cosmos 954 containing radioactive ele-

ments fell on Canadian territory. In an agreement adopted on 2 April 1981, the


Soviet Government accepted it would pay a lump sum of 3 million Canadian
Dollars. However, the agreement does not speak of responsibility. See 18 ILM 899
(1979), 20 ILM 689 (1981).
21 UN Doc. A/CN.4/543, Survey of Liability Regimes relevant to the Topic of

International Liability for Injurious Consequences Arising out of Acts not


Prohibited by International Law (International Liability in case of Loss from
Transboundary Harm arising out of Hazardous Activities), pp. 1356, 4056.
22 For background information on the accident at the Chernobyl nuclear power

plant, see Sands (1988), at pp. 16. As to the absence of compensation after the acci-
dent, some point out that the urgent requirements for domestic relief place consid-
erable nancial pressures on the USSR. Whether it is sensible to reallocate the
limited resources available to compensate more distant injured states for their con-
taminated dairy food and vegetables at this time of crisis in the source state is a
matter of policy, supra n. 19, p. 287. And some hold that, the victim states did not
take ocial action at the international level against the USSR in order to obtain
compensation in the absence of reliable proof of negligence, thus letting it be under-
stood that they doubted the existence of objective responsibility or liability without
a wrongful act with regard to the damage, Pisillo and Mazzeschi (1991, p. 31).
23 RIAA, vol. III, p. 1905.
24 Birnie and Boyle (2002, p. 147).
25 See Akehurst (1985, p. 3).
26 Principle 21 of the Stockholm Declaration reads as: states have, in accor-

dance with the Charter of the United Nations and the principles of international
112 International environmental law and conventions

dierent understandings as to whether they directly concern state respon-


sibility for damage to the environment of other states and to the common
environment, therefore laying down an obligation of result and an objec-
tive responsibility. An examination of the preparatory works of the
Declaration will draw a negative conclusion. During the preparatory
works, there was strong opposition to the idea that Principle 21 could be
interpreted as favouring objective responsibility, and it was clearly armed
that the declaration should exclude any responsibility of the public author-
ity based on risk and should emphasize that only negligence of a state could
engage its responsibility within the meaning of international law.27 This
armation was never challenged later during the preparatory works.
Opinions of scholars are rather divided. A good number of them favour
the strict liability of states as a general international principle when
transboundary damage is caused by abnormally dangerous activities.
Meanwhile, a similar number of scholars oppose the liability of states for
lawful acts and maintain that liability can arise only from the breach of a
specic international obligation, i.e. from a wrongful act.28
It should be recalled that the assumption under the present topic is that
the state of origin would have performed fully all the obligations concern-
ing prevention of transboundary harm under international law,29 and
breach of such obligation may constitute an internationally wrongful act,
which falls within the works of ILC on state responsibility.30 Therefore it
seems that the rst set of opinions, while trying to transplant the theory of
strict liability into international law, failed to recognize the distinction
between wrongful acts and lawful ones, and between liability of the opera-
tor and the role of the state. The practices to date seem to favour the latter
view. Just as pointed out by the Commission, the various existing models
of liability and compensation have conrmed that State liability is an excep-
tion.31

law . . . the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other states or of areas beyond the
limits of national jurisdiction, 11 ILM 1420(1972), reproduced from UN Doc.
A/CONF.48/14 and Corr.1, Report of the United Nations Conference on the
Human Environment, Stockholm, 516 June 1972. Other instruments following this
formula include United Nations Convention on the Law of the Sea, supra n. 17,
art. 194, para. 2; and Convention on Biological Diversity, 31 ILM 818(1992), art. 3.
27 See UN Doc. A/CONF.48/PC.12, Annex II, 15, para. 65.
28 See Pisillo and Mazzeschi (1991, pp. 223). See also Xue Hanqin (2003,

pp. 3016).
29 Commentary to Principle 4, para 2, pp. 1512.
30 UN Doc. A/RES/56/83, Responsibility of States for Internationally

Wrongful Acts.
31 ILC Report on the Work of Its Fifty-sixth Session, p. 159.
ILC proposal on transboundary damage 113

3.2 The work of ILC

Such were the sources of international law at the hand of the Commission
during its consideration of the topic: divided views among jurists,
diversied practices of states, the basis of international liability for trans-
boundary damage unresolved, and no general rules on the role of state.
Behind this undeveloped status, there is the reluctance of the state, as called
by some, or state sovereignty and the diversity of national values and goals,
as pointed out by others.32
In the Commission, there had been doubts about the existence of the
concept of state liability for non-prohibited acts in general international
law. Some members were concerned that in the absence of established,
scientically substantiated international standards for the determination
of adverse transboundary eects in various spheres, the elaboration of
general principles could contribute to the emergence of disputes, while the
lack of such standards would impede their settlement. It was contended
by some that a general regime of liability for non-prohibited activities
would amount to absolute liability for those activities, and that would not
be acceptable to states.33 And still some were hesitant to recognize the
automatic application of the principle of the strict liability of the state,
even if it was only residual liability,34 and preferred the choice of regime
left open for states to decide on what liability is appropriate to impose
on the operator or what is the appropriate action from the states
themselves.35
Meanwhile, it is well recognized that private-law remedies, while useful
in providing various choices to the parties, failed to guarantee prompt
and eective compensation to innocent victims, who, after suering
serious injury, would have to pursue foreign entities in the courts of other
states. In addition, private-law remedies by themselves would not encour-
age a state to take preventive measures in relation to activities conducted
within its territory having potential transboundary injurious conse-
quences.36 Therefore, progressive development was the appropriate
choice for the role of states,37 and it is within the function of the
Commission.

32 See Zemanek (1988, p. 322).


33 Yearbook of the ILC 1987, vol. 2, part two, pp. 42, 138.
34 See e.g. opinion of Mr Ogiso, Yearbook of the ILC 1991, vol. 1, pp. 15, 115.
35 See e.g. opinion of Mr Hayes, ibid. pp. 64, 121.
36 Supra n. 33, pp. 478, 181.
37 See e.g. opinion of Mr Pellet, supra n. 34, pp. 32, 106.
114 International environmental law and conventions

As emphasized by some members, there must be a good reason to intro-


duce the state obligation to make reparation.38 Reasons for the role of
states raised by members include the sic utere tuo ut alienum non laedas (use
yours in such a way as not to injure others) principle, serving the interests
of innocent victims better, and encouraging states to take the obligation sic
utere tuo more seriously.39 There is a general agreement in the Commission
that the principle sic utere tuo provided adequate conceptual foundations
for the development of the topic.40 Even in domestic law, the principle sic
utere tuo remains immersed in undened uncertainty. While transplanting
this principle into the international plane, no systematic reasoning was
given, maybe because of the feeling in the Commission that that theoret-
ical problem was a very real one, but the Commission could very well leave
it aside and formulate specic rules allowing for reparation.41 Therefore,
the legal basis for the role of state is not yet resolved.
Studying the Draft Principles in combination with its drafting process,
three characteristics can be identied regarding the role of the origin state.
The rst is the residual nature of the role of the state. In response to the
concern that absolute liability of the state for activities not prohibited
would not be acceptable, Special Rapporteur Barbaza proposed a new
scheme combining civil liability with state liability, establishing civil liabil-
ity as the primary channel and supplementing it with the liability of the
state, or substituting for the liable private parties by state liability if the
former could not be identied or located.42 The new method gained general
support from members of the Commission; but no agreement has been
reached on the conditions under which such residual liability could be
invoked, especially whether the state should be liable when operators could
not be identied.43
Secondly, the role of the state is primary obligation of conduct. In the
terminology of Ago, the former Special Rapporteur for the topic of state
responsibility, the rules of conduct are the primary rules, while the rules
of responsibility are the secondary rules.44 In case of responsibility for

38 See e.g. opinion of Mr Graefrath, supra n. 34, pp. 32, 112.


39 First report on the legal regime for allocation of loss in case of transbound-
ary harm arising out of hazardous activities by Mr Pemmaraju Sreenivasa Rao,
Special Rapporteur, A/CN.4/531, pp. 89, 16.
40 Supra n. 33, pp. 43, 1143.
41 See e.g. opinion of Mr Roucounas, supra n. 34, pp. 5, 114.
42 Document A/CN.4/437 and Corr. 1, Seventh report of Barboza, Yearbook of

ILC 1991, vol. II, part one, p. 85, para. 50.


43 Summary record of the 2222nd to 2228th meetings, supra n. 34. I. See for

example, the opinion of Mr Francis, ibid. p. 102, p. 11.


44 Yearbook of the ILC (1973, vol. II, p. 169).
ILC proposal on transboundary damage 115

wrongfulness, there had to be a violation of an obligation. In contrast, the


obligation of the state for lawful acts came into play not when their oblig-
ation had been violated, but when the condition that triggered that same
obligation had arisen.45 Though the wording state responsibility and state
liability was sometimes used during the elaboration of the Draft Principles,
they are not in the nal version, which simply states that the State of origin
should also ensure that additional nancial resources are made available.
The condition triggering such obligation is that other measures are
insucient to provide adequate compensation. Payment of the damages
is the fullment of a primary obligation,46 not a responsibility, nor liabil-
ity, and is in no means reparation, which under international law is a con-
sequence of a breach of a primary obligation.
Thirdly, the proposed obligation of the state is voluntary and of moral
nature. Already non-binding in nature, the Draft Principles reiterate several
times in the Commentary to the eect that the obligation of State is not
mandatory. For example, the Commentary explains that proposals on
nancial security, industry fund and role of the state are framed as guide-
lines to encourage States of origin to adopt best practices. The freedom
of States to choose one option or the other in accordance with its particu-
lar circumstances and conditions is the central theme of the present prin-
ciple.47 The principle is without prejudice to any ex gratia payments to be
made or contingency and relief measures that states or other responsible
entities may otherwise consider extending to the victims.48
A proposal with the above-mentioned characteristics can hardly satisfy
those who argue for state liability, or those who argue against it. Due to the
lack of strong reasoning for the introduction of such a new obligation, this
proposal might very possibly be criticized by both schools of scholars.
However, it seems to this author that the proposal is the best compromise
that could be reached at present. It noted fully the positive factor that states
did pay in some cases, and hence went beyond the prevention obligation in
existing international law. At the same time, the reluctance of states to be
liable is also fully taken note of, and the Commission, by featuring it as
residual, not as a liability, nor mandatory, tried to make the obligation
more acceptable. The proposal conforms to diverse practices of states in the
past and provided adequate exibility for future practices in balancing
specic and certain interests of parties in specic socio-economic context.
Its wise compromise and constructive vagueness can cover various

45 Supra n. 33, pp. 43, 146.


46 Supra n. 34, pp. 12, 136.
47 Commentary to Principle 4, para. 39, supra n. 3, p. 166.
48 Commentary to Principle 4, para. 4, ibid. p. 152.
116 International environmental law and conventions

solutions. So whether the state pays or not, in the name of ex gratia or as


compensation, the practice will not challenge this proposal. But a scenario
of transboundary damage caused by the operation of multinational cor-
porations in developing countries may cast doubt on the fairness of the
proposed role of the origin state, and make it dicult for that proposal to
be developed into customary international law.

4 WEAKER PROPOSAL ON THE ROLE OF


MULTINATIONAL CORPORATIONS
Let us assume that X is a corporation having the nationality of state A,
engaging in the production of hazardous materials, and indirectly owned,
through several subsidiaries, by Y, a corporation having the nationality of
state B. Everything went well, until one day an explosion occurred at X,
causing signicant transboundary damage in a neighboring state C. The
resources of corporation X is far from adequate to cover the transbound-
ary loss caused by the accident. Now, can the victims turn to corporation
Y for compensation?
It would not be a rare case, major industrial accidents causing massive
environmental harm having often involved multinational corporations
using high-risk technologies in foreign countries.49

4.1 International law on the role of multinational corporations

Multinational corporations, though operating through various entities in


dierent countries, are united in the economic sense, the parent company
being able to exercise substantial inuence over the activities of its aliates,
thus permitting coherent policies and a common strategy of the corpora-
tion.50 Just as pointed out by the Indian Government in the Bhopal case,
in reality, there is but one entity, the monolithic multinational.51 However,
while beneting from the overall operation of the multinational corpora-
tion, the parent company may avail itself of a series of juridical devices in
order not to be responsible for the activities of its aliates. The most usual
device is independent capital and legal capacity of each aliate under a

49Francioni (1991, p. 275).


50See the denition of multinational corporation by United Nations Centre on
Transnational Corporations, (1990, p. 34).
51 Memorandum of Law in Opposition to Union Carbide Corporations

Motion to Dismiss these Actions on the Grounds of Forum Non Conveniens, in


Baxi and Paul (1986, p. 93).
ILC proposal on transboundary damage 117

national law, which, under the concept of limited liability in corporate law,
constitutes a veil protecting the corporate groups and makes it dicult for
the liability of the aliate to be extended to the parent company.
The question of inuence of multinational corporations on the territory
of the host state has caused concerns in the international community since
the 1960s. International eorts resulted in some non-binding instruments,
including the OECD Declaration on International Investment and
Multinational Enterprises,52 to which Guidelines for Multinational
Enterprises are annexed; the ILO Tripartite Declaration of Principles con-
cerning Multinational Enterprises and Social Policy;53 and the Draft UN
Code of Conduct on Transnational Corporations.54 Regarding hazardous
activities carried out by multinationals, the accent of those instruments,
which emphasized non-interference of multinationals and control of host
states, is often put on prevention. Prevention obligations of multinationals
proposed by those instruments include adopting the highest safety and
health protection standards practicable in the foreign aliates, providing
necessary information to host states, etc.
Prevention obligations in those soft instruments have not led to interna-
tional treaties on the liability of multinational corporations. It is in national
practice that progress has been made. In several cases, parent companies,
though often reluctant, did compensate the damage caused by their
aliate.
In the oil spill case of Amoco Cadiz, the veil of multinational corporation
is expressly lifted. The supertanker Amoco Cadiz, which caused the oil spill,
was owned by Amoco Transport Co (Transport), a corporation having the
nationality of Liberia. All stock of Transport was indirectly owned, through
several subsidiaries, by Standard Oil Co (Standard), a US corporation. The
subsidiary most involved in the accident was Amoco International Oil Co
(AIOC). Actions for oil pollution damage and clean-up costs were brought
before the District Court of the United States, which concluded in its judg-
ment in 1984 that there had been negligence with respect to the maintenance
and repair of the steering gear which impaired the reliability of the system,
as well as failures to train and instruct the crew, all of which rendered

52 15 ILM 967 (1976), reproduced from OECD. Press Release A (76) 20 of June

21, 1976. For the new version of OECD Guidelines adopted in June 2000, see 40
ILM 237(2001).
53 17 ILM 422 (1978), reproduced from Tripartite Declaration of Principles

concerning Multinational Enterprises and Social Policy, published by the


International Labour Oce, Geneva.
54 22 ILM 192 (1983), reproduced from UN Doc. E/C.10/1982/6 of June 5,

1982, Annex. The eort to reach agreement on the Code of Conduct failed in 1992
due to division between the industrialized and the developing world.
118 International environmental law and conventions

Standard, AIOC and Transport liable for the damages suered by the
claimants. In the opinion of the District Court, Standard was the control-
ling parent of a large and intricate corporate structure, the companies of
which exist and complement one another for the nancial benet of and to
carry out the corporate will of Standard. Extended capacity of decision and
control was relevant in establishing the liability of Standard. Standard,
therefore, is liable for its own negligence and the negligence of AIOC and
Transport with respect to the design, operation, maintenance, repair and
crew training of Amoco Cadiz. In that case, the judge did not hide his belief
that no juridical subtleties and disclaimers could prevent the entity from not
taking care of the obligations of its instrumentality.55
In the cases of Seveso and Bhopal, veils of the multinational corporations
were also lifted, though not so explicitly. In the accident of Seveso, the
parent company was reluctant to be liable, but agreed to take charge of all
the obligations of its subsidiary as far as compensation is concerned, and
entered into settlement with victims.56 In the Bhopal gas disaster, the parent
company, UCC, had the same reluctance, but had to pay as ordered by the
Indian Supreme Court. Due to the compelling need for urgent relief of the
victims, the Supreme Court did not explicitly ascribe liability to UCC. But
it is notable that the India Government, by developing the doctrine of the
monolithic multinational, contributed signicantly to the theory of lia-
bility of multinational corporations:
Key management personnel of multinationals exercise a closely-held power
which is neither restricted by national boundaries nor eectively controlled by
international law . . . Persons harmed by the acts of a multinational corporation
are not in a position to isolate which unit of the enterprise caused the harm, yet
it is evident that the multinational enterprise that caused the harm is liable for
such harm . . . This inherent duty of the multinational is the only eective way
to promote safety and assure that information is shared with all sectors of its
organization and with the nations in which it operates . . . A multinational cor-
poration has a primary, absolute and non delegable duty. . .57

It should also be noted that, the Indian Government, although it owned


20 to 22 per cent shares in the Bhopal plant, was not held liable. Therefore,
it seems clear that UCC had to compensate the victims not for its major
share in the plant, but for its substantial control.
The Commission on Transnational Corporations of the UN Economic
and Social Council may be right in pointing out that, existing national and
international law and practice does not yet oer any clear operational

55 Scovazzi (1991, pp. 41321).


56 Ibid. pp. 397403. See also Pocchiari, Silano and Zapponi (1987, p. 60).
57 Supra n. 51.
ILC proposal on transboundary damage 119

rules for the allocation of legal responsibility of enterprises or States for


transboundary environmental harm. Consequently many of the major
cases which have involved transnational corporations have been handled on
dierent legal principles.58 However, juridical instruments of veil were
pierced and substantial control of the parent companies was established in
major cases. Other theories, including the concept of worldwide nancial
responsibility for multinationals and the duty to manage responsibly, may
also possibly establish the liability of the parent company.59 There seems to
be an emergent norm of international law that transnational corporations
are strictly liable for mishaps from hazardous activities conducted by their
subsidiaries around the globe.60

4.2 The work of the ILC

In the second report of the Special Rapporteur Rao, a set of 12 draft prin-
ciples was proposed, and the role of the parent company is in the princi-
ple per se, where Article 2(e) clearly stated that the operator may include
a parent company or other related entity whether corporate or not.61
However, after consideration of that second report, in the text of draft
principles adopted by the Commission on rst reading, the role of the
parent company is only mentioned in the commentary, which said that the
operator may also include a parent company or other related entity,
whether corporate or not, if that entity has actual control of the opera-
tion.62 Actual control, set as the condition for the liability of the parent
company by the expression if, is ambiguous in its meaning, and may give
rise to dierent understandings from parties to future transboundary
damages, thus raising the diculty for the victims to get adequate
compensation.
Some amendments have been made in the text of the Draft Principles
adopted by the Commission on the second reading, where the role of the
parent company is still in the commentary, but the wording was changed
slightly. Now the commentary points out that, the operator may also
include a parent company or other related entity, whether corporate or not,
particularly if that entity has actual control of the operation.63 What is
exactly meant by this commentary? And how will it work?

58 UN Doc. E/C. 10/187/12 of February 1987.


59 Westbrook (1985, p. 323).
60 Divan and Rosencranz (1989, p. 169).
61 Supra n. 31, p. 148.
62 Ibid. p. 185.
63 Supra n. 7.
120 International environmental law and conventions

Let us turn back to the scenario envisaged at the beginning of this


chapter. When victims turn to parent company Y for compensation, the
parent company may very possibly argue that it has no actual control over
corporation X; therefore it is not liable according to the Draft Principles.
But there are also some good arguments from the commentary in favour
of the victims. The wording particularly if makes actual control no
longer a condition for parent company liability, but only one typical case.
And in the commentary, while recognizing that the denition of
operator is functional, the Commission reiterates that, recognition has
been gained for the notion that by operator is meant one in actual, legal
or economic control of the polluting activity.64 Reading those commen-
taries together, it may be argued that the linkage between parent
company and liability is not only actual control, but tends to be substan-
tial control.
With that understanding of the commentary, the liability of the parent
company might be established. But it will tend to be a timing-consuming
process for victims, which contradicts the purposes the Draft Principles.
Therefore, it can be said that a proposal for progressive development on the
role of multinational corporations has been made by the Commission, but
the proposal is really weak.

5 PROPOSAL ABSENT REGARDING THE ROLE OF


HOME STATE

Now let us continue with the scenario, and further assume that host state
A is a developing country, where there is no insurance mechanism for envi-
ronmental damages. Still, it will not be a rare case. With globalization, loose
environmental governance by developing countries is taken as a compara-
tive advantage; hazardous industry has been and will continue to be relo-
cated on a large scale in developing countries, who, due to the domestic
urgency to improve living standards, tend to approve the hazardous activ-
ity even if not fully informed of the potential risk. Also, in those develop-
ing countries, there is usually a lack of monitoring capacity or insurance
mechanism for such hazardous activity.
If victims failed to get adequate compensation from parent company Y,
either for the liability of Y not established, or for the inadequacy of
resources of Y, what can be done next? Can the victims turn to home
State B?

64 Commentary to Principle 2, para. 32, supra n. 3, p. 41.


ILC proposal on transboundary damage 121

5.1 International law about the role of the home state

Similar to the status of liability of multinational corporations, no treaty


exists regarding the role of the home state in transboundary damage. What
makes the situation worse is that there is not even one major case in which
the home state paid for the damage, and the contributions in legal litera-
ture are also scarce.
Soft laws in this regard are mainly about the prevention obligation of the
home state. For example, the OECD Guidelines provide for the duty of cor-
poration by the home state to ensure and promote the observance of the
Guidelines, and the responsibility to use its powers and inuence in order
to ensure the application of adequate safety and health standards by the
multinational corporation.65 An instrument that goes beyond the preven-
tion obligation is Recommendation 103 of the Stockholm Declaration
which states that: the burdens of the environmental policies of the indus-
trialized countries should not be transferred, either directly or indirectly, to
the developing countries. As a general rule, no country should solve or dis-
regard its environmental problems at the expense of other countries . . .66
This Recommendation means that ecologically damaging industries should
not be relocated to developing countries.67 With this Recommendation, in
the case of transboundary damage caused by subsidiaries of multinational
corporations, which is obvious evidence of the prohibited relocation, it may
be implied that the home state should be liable. However, without adequate
support from other sources of international law and state practice, the
Recommendation alone cannot prove the existence of customary inter-
national law on the role of the home state.
The lack of sources of international law on the role of the home state
reects the home states reluctance to be liable, and the host states concern
of possible interference.68 These attitudes are related to the traditional link
of territorial control, according to which states are internationally respon-
sible for the conduct of private parties only in so far as such conduct takes
place within their territorial jurisdiction, and states may not be held
responsible for the behaviour of their nationals abroad.69
The traditional link of territorial control is premised on exclusive
controls by the territorial state. However, the overseas operation by multi-
national corporations never loses its substantial connection with the home

65 Supra n. 51, p. 968. See also Bothe (1989, pp. 1667).


66 11 ILM 1462 (1972), reproduced from UN Doc. A/CONF.48/14 and Corr. 1.
67 See Walter (1982, p. 67).
68 Supra n. 48, pp. 2767.
69 Bothe (1989, p. 165).
122 International environmental law and conventions

state. The parent company is subject to the home states jurisdiction, and
the home state has the capability of extending the material reach of its
public controls over foreign activities of multinational corporations.
Although it is true that environmental risks are with the activities of multi-
nationals and its subsidiary abroad, it is also true that control over such
activities is still retained by home states.
It has been rightly pointed out that there is a profound imbalance, or lack
of reciprocity, when reecting together with the international law relating
to the treatment of aliens. While a state is in a position to invoke rights
relating to the treatment of its nationals abroad, it has no corresponding
duties relating to their behaviour.70 The same imbalances exist that, while
the home country benets from the overseas operation of the multinational
corporation, in terms of business expansion and tax revenues on the foreign
income, it is not responsible for the loss caused by such operation; while the
home state exercises tax jurisdiction over those activities abroad, jurisdic-
tion belongs only to the host state when the activity causes damage.
It is not only a question of imbalance, but unfairness. Both within the
Commission and in some scholarly circles, it has been pointed out that such
an approach focusing on territorial control was too limited and would not
do justice to the interests and special circumstances of developing coun-
tries. Developing countries were hardly in a position to regulate activities
involving risk and may cause transboundary harm carried out by transna-
tional corporations, nor did those countries have the technological know-
how and nancial resources to control such activities. It was thus not only
a matter of providing assistance to developing countries, but also of deter-
mining who was liable in the case of transboundary harm.71 A loss alloca-
tion regime could not be considered equitable and based on a sense of
justice if it ignored the disparities in standards of living between nations
and was insensitive to the development needs of the majority of the worlds
population.72
Aware of the imbalance and inequity caused by a traditional approach,
some scholars believe that the question of the states legal duties to control
the operation of their corporations should be rethought.73 The traditional
criterion of territorial control should be reassessed in light of the intangi-
ble connection economic, legal, political that exists between the home
state and the foreign operations of the multinationals, and the notion of
eective control rather than of territoriality should be adopted as the basis

70 Christenson (1983, p. 321).


71 The view of Mr Shi, supra n. 34, p. 117, para. 29.
72 The view of Mr Rao, supra n. 34, p. 118, para. 36.
73 Bothe (1989, p. 165).
ILC proposal on transboundary damage 123

for channelling liability in case of damage caused by the foreign operations


of multinationals. A duty might be placed on the home state to ensure that
such foreign operation conformed to international standards, and the home
state should also accept a share in the allocation of loss resulting from any
accident causing transboundary harm.74 Some have pointed out that there
was a trend towards the development of new primary rules serving as a
basis for home state responsibility.75 But, as stated above, scholars com-
ments in this regard are rare.

5.2 The work of ILC

Those scholarly comments and suggestions have not drawn enough atten-
tion from the Commission. The Commission chose to follow the conven-
tional approach of territorial control link. Therefore, its proposal on the
role of state mentioned only the state of origin, which is the State in the
territory or otherwise under the jurisdiction or control of which the haz-
ardous activity is carried out.76
It should be noted that the ILC proposal actually narrowed the trad-
itional approach while making it clear. The expression jurisdiction or
control of a State is a more common formula in international instruments,
following the precedent of Principle 21 of the Stockholm Declaration.
With such a formula, Principle 21 means that jurisdiction or control
alone is a separate and sucient base for the states obligation to ensure
that activities do no damage to the environment of other states or the
global commons. The Commission made this formula clearer in two ways,
which excludes the possibility of home state obligation. First, the concept
of territory was introduced, in order to emphasize the importance of the
territorial link. Territory is taken as conclusive evidence of jurisdiction, and
territorial link is the dominant criterion. By the Draft Principles, the
expression jurisdiction is intended to cover activities such as those taking
place in outer space or on the high seas. Secondly, the Commission inter-
prets the concept of control as covering situations in which a state is exer-
cising de facto jurisdiction, even though it lacks jurisdiction de jure, such as
unlawful intervention, occupation and unlawful annexation.77 When rst
used in the Stockholm Declaration, the notion of control is not specied.
While the International Court of Justice held that physical control of a
territory, and not sovereignty or legitimacy of title, is the basis of State

74 Francioni (1991, pp. 27598).


75 Bothe (1989, p. 168).
76 Principle 2(d).
77 Supra n. 2, pp. 3834.
124 International environmental law and conventions

liability for acts aecting other States,78 it is not dening the concept of
control, and other possibilities are not excluded. As pointed out by one
scholar, while the notion of control refers to those forms of factual
inuence, capacity of eective direction, or actual constraint, one of the
typical situations covered by such concept of control may be that of the
eective regulatory and supervisory powers that the home country displays
over the foreign operations of a multinational corporation.79 The work of
the ILC, while emphasizing the territorial link, neglected the substantial
control of the home state.
Another point to be noted is that the ILC proposal appears somewhat
inconsistent with its previous work on prevention. In the Draft Articles
on Prevention, the state of origin is dened as the state in the territory or
otherwise under the jurisdiction or control of which the activities are
planned or carried out.80 According to that denition, not only the state
where the activities are carried out, but also the state where the activities
are planned have a prevention obligation. The home state may well be a
place where those activities are planned. But in the draft principles, the
expression planned was removed. Therefore, in the case of transbound-
ary damage, the state where the activities are planned has no obligation
to ensure additional resources, even if it has not fullled its prevention
obligation. But the state where the activities are carried out should ensure
additional resources, even if it has fullled all obligations of prevention.
A similar inconsistency exists in comparison with the role of multina-
tional corporations. Operator liability may be traced back to the parent
company in the home state, but the role of state to share loss stays in the
host state.
If the Commission followed the same logic as in the Draft Articles on
Prevention, a progressive development on the role of the home state may be
made, or at least implied. If the Commission did not make the traditional
territorial approach so restricted, more room might be left for future devel-
opment. If the Commission applies the same reasoning as for the role of
origin state, either the sic utere tuo principle, or serving the interests of inno-
cent victims better, or encouraging states to take the obligation sic utere tuo
more seriously, the home state should have a share in the loss allocation. It
is a pity that the Commission adhered strictly to the traditional territorial
approach in a narrow sense, and no proposal for progressive development
was made for the role of the home state, the results of which are that sub-

78 I.C.J. Reports 1971, p. 16.


79 Francioni (1991, pp. 28990).
80 Article 2(d) of the Draft Articles on Prevention, supra n. 2, p. 371.
ILC proposal on transboundary damage 125

stantial control of the home state is overlooked, and a profound imbalance


and inequity continues. Another serious result may be the adverse impact
on the Commissions proposal on the role of the origin state.
Now let us nish the scenario. According to the ILC proposal, it is hard
for the victims to resort to home state B, then the only choice for the victims
is to turn to host state A, that developing country. In such cases, both the
state of origin of the hazardous activity (host state) and the home state
benet from the hazardous activity. Is it fair for the origin state to pay while
the other beneciaries of the operation do not? With such doubt, state A
may hesitate to share the loss without presence of home state B, and the
victims probably have to bear the loss themselves, thus the normativity and
eciency of the ILC proposal are challenged. Even if state A managed to
avail additional nancial resources to share the loss, its resource may not
be adequate to cover the loss, the eciency of such an approach is still in
question, and the question of equity remains.

6 CONCLUSION

With the weaker proposal on the role of multinational corporations and


the proposal absent regarding the role of home state, ILCs proposal on
the role of the origin state cannot serve as a balanced basis for progres-
sive development of international law. A more balanced international
regime needs to take into account the global relocation of hazardous
industry, the transboundary inuences of multinational corporations and
the desire of developing countries to develop and their lack of capacity to
regulate environment risks imported together with foreign investment. In
this regard, more contribution of legal literature is needed, and proposals
for further development of international law are still expected.

REFERENCES

Akehurst, M.B. (1985), International Liability for Injurious Consequences arising


out of Acts not Prohibited by International Law, in Interuniversitair Instituut
voor Internationaal Recht, T.M.C. Asser Instituut, Netherlands Yearbook of
International Law, 16, Leiden: Seitho, pp. 316.
Baxi, U. and Paul, T. (eds) (1986), Mass Disasters and Multinational Liability: The
Bhopal Case, Bombay: NM Tripathi.
Birnie, P.W. and A.E. Boyle (2002), International Law and the Environment, Oxford:
Oxford University Press.
Bothe, M. (1989), The Responsibility of Exporting States, in G. Handl and R.E.
Lutz, Transferring Hazardous Technologies and Substances, the International
Legal Challenge, London: Graham and Trotman, pp. 158170.
126 International environmental law and conventions

Christenson, G.A. (1983), The Doctrine of Attribution in State Responsibility, in


R.B. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens,
Charlottesville: University Press of Virgina, pp. 321360.
Divan, S. and Rosencranz, A. (1989), The Bhopal Settlement, EPL, 19, 166.
Francioni, F. (1991), Exporting Environmental Hazard through Multinational
Enterprises: Can the State of Origin be Held Responsible?, in F. Francioni and
T Scovazzi (eds), International Responsibility for Environmental Harm, London:
Graham and Trotman, pp. 275298.
International Law Commission (1987), Yearbook of the ILC 1987, 2, New York:
United Nations.
Pocchiari, F., Silano, V. and Zapponi, G. (1987), The Seveso Accident and its
Aftermath, in P.R. Kleindorfer and H.C. Kunreuther (eds), Insuring and
Managing Hazardous Risks: from Seveso to Bhopal and Beyond, Berlin: Springer,
pp. 732.
Pisillo, R. and Mazzeschi, R. (1991), Forms of International Responsibility for
Environmental Harm, in F Francioni and T. Scovazzi (eds), International
Responsibility for Environmental Harm, London: Graham and Trotman, pp,
525.
Sands, Ph. (ed.) (1988), Chernobyl: Law and Communication, Cambridge: Grotius
Publications.
Scovazzi, T. (1991), Industrial Accidents and the Veil of Transnational
Corporations, in F. Francioni and T. Scovazzi (eds), International Responsibility
for Environmental Harm, London: Graham and Trotman, pp. 395428.
United Nations Centre on Transnational Corporations (1990), Proposed Text of the
Draft Code of Conduct on Transnational Corporations, in the New Code
Environment, UN Doc. E/1990/94, 2 June 1990.
Walter, I. (1982), Environmentally Induced Industrial Relocation to Developing
Countries, in S. Rubin and T.R. Graham (eds), Environment and Trade,
Totowa/NY: Allandheld Osmund, pp. 67101.
Westbrook, J.L. (1985), Theories of Parent Company Liability and the Prospects
for an International Settlement, TILJ, 20, 321333.
Xue, H. (2003), Transboundary Damage in International Law, Cambridge:
Cambridge University Press.
Zemanek, K. (1988), Causes and Forms of International Liability, in B. Cheng
and E.D. Brown (eds), Contemporary Problems of International Law: Essays in
Honor of Georg Schwarzenberger on His Eightieth Birthday, London: Stevens &
Sons Limited, pp, 319332.
PART II

National Environmental Law in a


Transboundary Legal Context
6. Applying national liability law to
transboundary pollution: some
lessons from Europe and the United
States
Michael Faure and Gerrit Betlem

1 INTRODUCTION

Examples of transboundary pollution cases can unfortunately be found on


almost all continents and have probably since industrialization only
increased. Moreover, economists would argue that externalization of harm
is a natural phenomenon, not only for individuals and enterprises, but also
for political entities like States. Indeed, if politicians were able to make their
own voters enjoy the benets of economic activities while they could
succeed in passing on the costs to others, they would in principle not refrain
from doing so. Moreover, politicians will generally not be rewarded for
ghts against transboundary pollution since the foreign citizen who would
benet from such action cannot support them with votes. In other words,
the fact that national politicians would support legislation allowing rms
to externalize harm to their neighbours should, from this economic per-
spective, not come as a surprise. To some extent, it is easy to nd examples
of this externalizing behaviour, for example if one simply looks at the siting
of noxious and dangerous facilities: in many countries, dangerous activities
like e.g. nuclear power plants will not be located next to the capital of a par-
ticular country, but preferably close to the borders where risks are primar-
ily felt by their neighbours.
Just as within the national context (also in regard to transboundary
environmental harm), externalities are considered a market failure to
which the law should react. In the absence of legal rules which force coun-
tries to take into account the transboundary pollution they cause, States
will have no incentives to do so. The primary goal of international envi-
ronmental law should therefore, from this simple economic perspective, be
no other than the internalization of the transboundary externality caused
by pollution.

129
130 Transboundary legal context

Of course, some economists may argue that it is not necessary to use legal
rules to internalize externalities: Ronald Coase taught that as long as trans-
action costs are zero, an ecient internalization, also of transboundary
externalities, could take place via bargaining between the parties. Some
economists have indeed suggested that, for example, as far as small-scale
pollution is concerned, this type of bargaining may result in an ecient
internalization of the harm.1 However, experience shows that so far very
few transboundary pollution cases have been solved through ecient bar-
gaining. Even in cases where there are only two parties involved (for
example an upstream polluting State and a downstream victim State) bar-
gaining which would, for example, lead to the victim State paying the pol-
luter State to install ecient pollution reduction mechanisms is rare. Even
though transaction costs are low, there may be a variety of reasons why
ecient bargaining does not take place, one of them being strategic behav-
iour by the States or political failures as a result of which States would be
insuciently willing to represent the interests of that (small number of)
victims actually suering the harm. Moreover, as soon as the transbound-
ary pollution passes the boundaries of not only one State, but many more
States are victimized and complicated causation issues arise, it may be clear
that bargaining may not generate ecient results.
Interestingly, economists have always argued that the transboundary char-
acter of an externality, like environmental pollution, is one of the primary
reasons in favour of shifting powers to a higher level of government.2 Hence,
it is not dicult to argue from an economic perspective that shifting powers
to a higher level of government is an ecient reaction to transboundary pol-
lution. That explains why larger institutional settings like, for example, the
European Union or the Federal State in the United States deal more partic-
ularly with transboundary pollution problems. Moreover, the central goal of
international treaties which form the core of the body of law referred to as
international environmental law, of course, equally aim at this internaliza-
tion of transboundary environmental externalities. Indeed, many contribu-
tions to this volume deal with the question of how international law, either
through State liability or through international conventions, can eectively
provide this remedy to transboundary pollution. In this chapter we will,
however, provide a dierent perspective.
We will examine to what extent national liability rules can be used as an
eective remedy to transboundary pollution. Formally, the body of law

1 See Cohen (1996, pp. 167171).


2 See for example Esty (1996, p. 625) and Kimber (1995), as well as the classic
paper by Oates and Schwab (1988).
Applying national liability law 131

which we therefore discuss in this chapter is not international environmen-


tal law (even though we will, of course, examine to what extent interna-
tional conventions are important in individual liability cases). Instead, we
will deal with national tort law and discuss what problems may arise in its
application to transboundary pollution cases. By discussing the potential
problems, we, at the same time, also discuss the (potential) solutions.
Indeed, the general argument in this chapter is that more particularly for
well-identied pollution cases, where pollution is kept within reasonable
boundaries and polluters can be identied, the application of national tort
law to transboundary pollution can to some extent provide an eective
remedy. We are in this context, of course, referring to what can in fact be
called an extraterritorial application of national tort law, since the national
tort law of (usually) the victims State will be applied to a pollution which
has its origin in the polluters State.
Even though we will argue that applying national tort law to these trans-
boundary pollution cases has a lot of potential, we equally realize that
there are serious limits. From the moment that the number of polluters
becomes very large or the damage very widespread, complicated causation
issues may arise and the scope for applying national tort law may become
more limited. For those cases, the argument in favour of regulation through
international conventions becomes stronger.3 Nevertheless, one should
realize that increasingly authors examine whether also national tort laws
can be used to tackle complicated problems where indeed many causation
questions arise. In this respect, applying liability law has even been sug-
gested in the literature as a remedy for damage caused by climate change.4
Our argument is that given the many weaknesses in international treaties in
remedying transboundary pollution (more particularly the well-known
problems of compliance and enforcement),5 there may be ample reasons
not to exclude the possibility to apply national tort law to transboundary
pollution cases.
The reason we are, moreover, interested in this topic is that in many
countries in Europe, and more particularly in the Netherlands, there is

3 This complies with the general economic argument made by Steven Shavell

that regulation should be used when the deterrent eect of tort rules may be weaker
(Shavell (1984a, pp. 357374) and Shavell (1984b, pp. 271280)).
4 See for example Faure and Nollkaemper (2007, pp. 123179); Gupta (2005);

Grosman (2003, pp. 161); Allen (2003, pp. 891892); Verheyen (2005) and Spier
(2006, available at , <http://www.indret.com/pdf/346_en.pdf>).
5 See with respect to the problems of enforcement and compliance in interna-

tional law, inter alia, Jacobsen and Brown Weiss (1995, pp. 119148); Mitchell
(1996, pp. 328) and Faure and Lefevere (2004, pp. 163180).
132 Transboundary legal context

considerable experience with the application of national liability law to


transboundary pollution cases. Indeed, in the Netherlands both individ-
ual victims and non-governmental organizations (NGOs) have success-
fully led claims against foreign polluters before Dutch courts. However,
we will not merely address Dutch law. Rather, it is intended to provide an
agenda indicating the type of problems and questions that may arise if
one wishes to use liability law to solve a transboundary environmental
pollution problem. By addressing these problems, we will refer to a
number of possible solutions, some of them coming from the
Netherlands, but also others nding a more general basis in European
(environmental) law. By doing so, we hope that also for readers in other
continents, it may become clear what type of questions arise in the use of
liability law to remedy transboundary pollution problems. In answering
these questions, we will be able to rely on some earlier research.6 We
expand on this earlier work by discussing the problems that may arise in
applying national liability law to transboundary pollution cases at a more
abstract level and by using, where appropriate, the economic analysis of
law.
After this introduction (1), the remainder of this chapter will be struc-
tured as follows: rst, we will generally analyse to what extent interna-
tional norms or treaties play a role in a specic transboundary liability
case (2), next the important question will arise before which forum a
transboundary liability case can be brought (3) and which law will be
applied (4). Then, the question arises what actors can bring a liability suit
and, more particularly, whether this is restricted to victims suering
actual harm or whether NGOs also have standing (5). Of course, the
question needs to be addressed what the applicable liability rules are (6)
as well as the applicable remedies, including an examination of litigation
in the United States about the use of citizen suits in a transboundary
context (7). Also, the question needs to be addressed what the eect may
be of regulations or, more particularly, standards prescribed in a permit,
especially when this permit has been granted by a foreign authority (8).
Finally, the question will be addressed how a victim could eventually
execute a judgment that he has obtained in a victim State in a polluter
State (9) and a few concluding remarks will be formulated (10).

6 See more particularly Betlem (1993); Betlem (1996, pp. 145158); Betlem

(2000, pp. 283305); Betlem (2004, pp. 677696); Betlem and Bernasconi (2006,
pp. 123150); Betlem (2006, pp. 149188); Faure (1993, pp. 157162) and Betlem
and Faure (1998, pp. 855890).
Applying national liability law 133

2 INTERNATIONAL LAW IN A TRANSBOUNDARY


LIABILITY CASE

2.1 General: monism versus dualism

Many potential problems of transboundary pollution are now subjected to


international regulations in the form of treaties. States are parties to these
treaties and the regime of the particular Treaty will determine how the
Treaty is enforced and what sanctions may apply in case of non-
compliance. As such, it seems as if treaties and the rules contained therein
provide a separate world from liability cases. The simple reason seems to be
that only States are parties to a Treaty and can therefore on the basis of the
classic rule in international law7 enjoy benets or be held liable on the basis
of such a Treaty. Although this basic Statement is still true today, reality is
a bit more complex and balanced. In principle, an individual in either a
victim or a polluter State will only be confronted with the contents of a
Treaty when this has been implemented by the national State, in other
words if the national State has taken the necessary measures in national law
to give eect to the particular Treaty. In that case, as a result of the Treaty,
citizens could either enjoy benets from the Treaty or have obligations
imposed upon them as a result of the implementation of the Treaty. An
example would be the conventions on nuclear liability such as the Paris
Convention concerning civil liability in the domain of nuclear energy of
29 July 1960 (as many times amended). It creates obligations for the licensee
of a nuclear power plant in the ratifying States, for example to obtain com-
pulsory insurance coverage up to the amount specied in the convention
and grants specic rights to victims to obtain compensation in case of a
nuclear accident up to the limits specied in the convention.8
After the convention has been implemented in national law, the national
legislation of the Contracting States imposes these particular obligations or
confers particular rights on the citizens within the States. Nevertheless, the
question can arise as to what the situation would be if, for example, Treaty
provisions would not have been adequately implemented in national law or
if, more generally, a State would violate obligations (other than those arising
from Treaties) under international law. The question that interests us here is
not whether this may give rise to responsibility of the State under interna-
tional law but whether a particular individual could then call on this viola-
tion of international law if he suers damage as a result of it. A distinction

7
See generally Birnie and Boyle (2002), in particular Chapters 35.
8
For details on nuclear liability see, inter alia, Degros (2006, pp. 303374) and
Vanden Borre (2007, pp. 261311).
134 Transboundary legal context

can be made (presenting this in a very simple way) between the situation
where it is the victims own State that has hypothetically failed to implement
the Treaty obligation and the situation where this would be another State.
Suppose that the victims State failed to implement the obligations under a
Treaty and that the victim claims to suer damage as a result of that which
stands in a causal relationship with the violation of the Treaty obligation.
International legal doctrine then holds that one rst has to examine whether
the particular State of that victim follows a so-called monistic or a dualistic
approach to international legal obligations. In countries where a so-called
monistic approach is followed (such as the Netherlands, France and
Belgium), international law automatically becomes part of internal law and,
provided that the obligations imposed upon the State in the Treaty are
suciently clear and precise (the typical wording in this respect is self-
executing) the victim can call directly on these provisions even if the State
failed to take measures in national law to implement the obligations. This is
not true in legal systems that have a so-called dualistic approach (e.g.
Germany). In those systems, citizens do not have the possibility to call
directly on international law as long as it has not been transposed into
national law. Hence, in this dualistic approach, rst national transposition
legislation is necessary on which the citizen can subsequently call.

2.2 The Chernobyl case: district court of Bonn

This is, of course, the well-known standard theory of international law con-
cerning the relationship between individuals and international law.9 More
interesting is the question whether a victim could also call on international
law if it has been violated by a polluter State. Suppose that a convention (or
obligation of international customary law) would oblige States to warn
neighbouring States and their citizens if a major nuclear incident took place
as a result of which a nuclear cloud could come in the direction of the neigh-
bours, necessitating preventive measures (e.g. putting cattle in the stables) in
the neighbouring States. Could a victim in the neighbouring State call on the
liability of the polluter State if this obligation was violated and the victim
suered harm as a result of this? This was the question that had to be
answered by the civil court of rst instance of Bonn in a claim led by a gar-
dener in Germany against the Soviet Union who argued that the Soviet
Union had violated its obligation of early notication.10 The German court

19 See generally (in Dutch), Nollkaemper et al. (2005), preadviezen.


10 See a discussion of this decision of 29 September 1987 by Rest (1997, p. 116
at pp. 121122) and Nollkaemper (1998, pp. 34).
Applying national liability law 135

held, not surprisingly, that there is no direct liability on the Soviet Union vis-
-vis the German gardener. If the Soviet Union had had an obligation under
international law to notify Germany and had not done so, this could only
have amounted to liability under international law of the Soviet Union vis-
-vis Germany. The German court therefore adhered to the classic view that
international norms cannot be called upon by one individual in a victim State
to hold a polluter State liable.11

2.3 MDPA case: direct application of international law

Nevertheless, there can be situations where norms of international law


clearly do play a role in transboundary liability suits.12 This is the right
moment to introduce one of the rst Dutch cases concerning transbound-
ary pollution. The case was launched by various gardeners in the
Netherlands in the 1970s against the Mine de Potace dAlsace (MDPA).
The market gardeners contended that MDPAs discharges of salt in the
Rhine increased the salt level of the water of the Rhine to such an extent
that they could not make use any more of the water of the Rhine and hence
suered damage as a result of it. The MDPA case has been extensively dis-
cussed in the literature13 and has given rise to many judgments, even of the
Supreme Court of the Netherlands.14 The cases are interesting under two
dierent headings: the relationship between international law and the
rights of individuals suering harm. The most far-reaching approach15 was
provided by the district court of Rotterdam handling the case in rst
instance.16 The district court of Rotterdam held that, since no rule of
national law could be found to decide this case, it had to turn to unwritten
international law and applied the principle that no State can use its territory

11 Nollkaemper adds that this a fortiori means that if the German farmer had

not sued the Soviet Union but the private corporation in the Soviet Union liable for
the nuclear cloud, the principle of notication would then certainly also not have
had any eects between two individuals (Nollkaemper (1998, p. 3)).
12 For a detailed discussion of this see the already mentioned contribution of

Nollkaemper (1998).
13 See, inter alia, Betlem ((1993, pp. 393401) and the contributions in Van

Dunn (1991).
14 Supreme Court of the Netherlands, 23 September 1988, Tijdschrift voor

Milieuaansprakelijkheid (Environmental Liability Review), 1989, 1518.


15 According to Nollkaemper (1998, pp. 67).
16 Handelskwekerij G.J. Bier B.V. and Stichting Reinwater v de Potace dAlsace

sa (MDPA), district court of Rotterdam NJ 1979, 113, Netherlands Yearbook of


International Law, 1980, vol. 11, 326 and district court of Rotterdam, 16 December
1983, NJ 1984, 341, Netherlands Yearbook of International Law, 1984, vol. 15, 471.
136 Transboundary legal context

for activities that cause harm to another State. The district court of
Rotterdam thereby explicitly refers to the well-known Trail Smelter case
which made this so-called good neighbourliness principle explicit.17 The
Court of Appeals of the Hague, however, reversed this ruling.18 The court
held that the principle of direct eects of rules of international law applied
exclusively to treaties and not to unwritten rules of international law.
Nollkaemper, however, holds that general principles of law can also satisfy
the self-executing test and that, moreover, these general principles often
nd their origin in national law, where they do generally apply to individu-
als. He therefore concludes that the Court of Appeals

did not expressly overrule (nor did it need to do so) the part of the judgment that
sanctioned violation of the norm on the basis of international law. To that
extent, this construction of direct application and enforcement of international
law can still be said to exist in Dutch law.19

The MDPA case discusses another interesting aspect of the relationship


between international law and national liability law. The attorney of the
defendant held that the lawfulness of the emissions by MDPA had to be
seen in the light of a so-called Bonn Salt Treaty.20 The defendant argued,
inter alia, that now that the Netherlands and France have acceded to the
Treaty, which explicitly aims at reducing transborder pollution of the Rhine
to acceptable levels for Dutch users, the Dutch gardeners cannot reproach
MDPA to have acted in excess of emission levels laid down in the particu-
lar Treaty. The argument of MDPA hence was that this international Treaty
between France and the Netherlands would bar a claim in tort since the
Treaty would deal with the issue of the salt discharges from France into the
Rhine in a nal way. The Hoge Raad explicitly discusses this argument and
rejects it on the following grounds:

The argument of the court cannot be accepted as correct. Leaving aside the fact
that the Treaty only became operative in 1985, while damages in this action are
demanded as from 1974, it follows from the text and the purport of the Treaty

17 Trail Smelter Arbitration Tribunal (US v Canada), 33 AJIL 182 (1939) and

35 AJIL 684 (1941); see generally Bratspies and Miller (2006) and Sands (2003,
pp. 241242 and pp. 318319).
18 Court of Appeals of the Hague, 10 September 1986, Tijdschrift voor

Milieuaansprakelijkheid (Environmental Liability Review) 1987, 15 with case note


by Vandermeer, Netherlands Yearbook of International Law, 1988, vol. 19, 496.
19 See Nollkaemper (1998, p. 4, footnote 10). The supreme court did not express

itself on this particular issue.


20 An agreement of 3 December 1976 concerning the protection of the Rhine

against pollution by chloride.


Applying national liability law 137

that it only intends to impose obligations on the States that enter into the Treaty.
There is no indication at all that the Treaty which came into being when the
action in question was already running should also have in view the regulation
of the internal relations of the subjects of that States entering into the Treaty,
nor also that in this manner the judge in one of these States should be held to
have to decide an action between those subjects on the basis of the Treaty.

The Supreme Court held in other words that the Treaty was not rele-
vant for determining the wrongfulness of the discharges by the French
defendant since the Treaty would only cover the relationship between
the States which are party to the Treaty and not between private
persons.21

2.4 Lessons

The lesson from this legal doctrine and case law seems to be that individ-
uals can indeed not directly call on a violation of norms of international
law by another State (district court of Bonn) but at least some case law
bases liability in tort of a foreign polluter on a violation of international
law (district court of Rotterdam). Moreover, since treaties in principle
only govern the relationship between States, compliance with a Treaty by
the polluter State does not necessarily have a justicatory eect for indi-
vidual polluters (Supreme Court in the MDPA case). Moreover, even
though the decision of the district court of Rotterdam whereby an indi-
vidual polluter was basically held directly liable for violating international
law may be debated, international law can, of course, play another role in
transboundary pollution disputes between individuals: it can be used as
an aid to interpret open norms in national law.22 In this respect, it should
not be forgotten that the basic norm of tort law in many legal systems is
today still rather open-textured and requires for example that a defendant
behaved with reasonable care. In interpreting whether, in a transbound-
ary pollution case, a defendant took reasonable care, a court could also
consider whether Treaty obligations or unwritten norms of international
law have been violated. Even though the defendant would then not be held
directly liable for violating international law, the norms of international

21 Nollkaemper rightly argues that this opinion can have very far-reaching con-

sequences since in this way a Dutch judge could theoretically prohibit all discharges
from France and could thus disregard the rights of France under international law
on the basis of a Treaty. Nollkaemper considers it doubtful whether the Hoge Raad
intended such a radical gap between international and domestic law. (Nollkaemper
(1998, p. 8)).
22 Nollkaemper (1998, p. 9).
138 Transboundary legal context

law can assist in making vague obligations under national tort law more
specic and concrete.23
Finally in this section, and as noted above, the most famous case about
transboundary pollution in public international law is Trail Smelter.24 It
concerns a Canadian lead-zinc smelter in Trail, British Columbia, close to
the US border with the State of Washington, causing environmental
damage in the latter as a result of air pollution. Arbitration at the interstate
level took place and the principles of international law about States oblig-
ations to prevent transboundary harm were claried. States must not use
their territory or permit the use of it where serious injury is caused to
another State in breach of its obligations; the source State is responsible in
international law in damages and must prevent future damage.25 In terms
of lessons to be learned, Knox argues that the international level dispute
resolution is an example of how not to deal with a dispute like this.26
Noting that no other similar tribunals have been set up since, he puts it in
very clear terms: Trail Smelter was a case before a wrong tribunal, between
wrong parties, applying the wrong law. Instead of an international body, a
national court should be used, primarily applying domestic and not inter-
national law, by private litigants rather than States. In the remainder of this
chapter we will examine precisely such a scenario of private litigation
before civil courts and the legal issues which will have to be addressed.

3 FORUM

3.1 Importance

A crucial and often decisive issue in transboundary pollution cases is where


a liability suit can be brought. For victims, it will, of course, usually be far
more attractive to bring a liability suit before their own courts. Intuitively,
one can understand why this would be the case. First of all, there is a simple
argument of costs: were the victim to sue a polluter in the polluter State, he
would probably need to seek counsel in the polluter State and cover travel
costs etc., which can be substantially higher than when a suit can be

23 That is hence dierent than what the district court of Rotterdam did that

held the French defendant liable because the company had violated a norm of inter-
national law.
24 Trail Smelter Arbitration Tribunal (US v Canada), 33 AJIL 182 (1939) and

35 AJIL 684 (1941); see generally Bratspies (2006).


25 Birnie and Boyle (2002, pp. 504505).
26 Knox (2006, pp. 6678).
Applying national liability law 139

brought in the place where the harm is suered by the victim. Secondly, the
choice of jurisdiction will often also have a decisive inuence on the choice
of law. It will usually be the lex fori that will determine the rules of inter-
national private law. Having the possibility to sue in the victim State will
hence often result in the application of the victims national law and the
reverse may be the case when the victim has to sue in the polluter State. The
latter issue is, of course, crucially related to a third element: one can expect
the judiciary in the victim State to be far more sympathetic towards the case
of the victim than the judiciary in the polluter State. This has to do with
the issues mentioned in the introduction: even if in most European States
judges are not elected, but professional appointed judges, a judge in a pol-
luter State may, far away from where the harm occurred, have more sym-
pathy for the diculties that a polluter has in applying (costly) pollution
reducing measures and may fear negative socio-economic consequences of
liability cases and vice versa. A judge in the victim State will be primarily
concerned with the harm suered on his territory and be less inclined to
worry about socio-economic consequences of a nding of liability in the
polluter State. That is why the potential success of transboundary pollu-
tion cases will often depend upon the possibility for the victim to bring a
claim in his own State. Of course, this is crucially related to the second ques-
tion, being whether if the victim would have obtained a positive judgment,
he can subsequently obtain a recognition and enforcement in the polluter
State. If that was not the case, starting legal proceedings in a victim State
would be pointless. This issue of jurisdiction is therefore crucially related
to the issue of recognition and enforcement.27

3.2 Brussels Convention

There is abundant literature on jurisdiction issues in international conicts,


which goes far beyond the limited scope of this chapter. We should,
however, remember that a common and universally accepted jurisdiction
ground is the so-called forum rei: the place of the defendants domicile. The
main argument for it is the protection of the defendant. Since the defen-
dant did not start the proceedings, he should not be forced to go abroad
and defend himself. The opposite, the place of domicile of the plainti
(forum actoris) is therefore rather the exception.28 The result is that to

27 Which we will discuss below in section 9.


28 See for a global overview the Final and Second Report of the International
Law Associations Committee on Transnational Enforcement of International
Environmental Law, available online at, <http://www.ila-hq.org/html/layout_com-
mittee.htm>.
140 Transboundary legal context

constitute a rule of jurisdiction which allows a plainti to bring a claim in


the State where the harm occurred will usually need an explicit legal basis
in a convention. Within the European context for a long time the relevant
convention was the Brussels Convention of 27 September 1968 on juris-
diction and the enforcement of judgments in civil and commercial matters.
This document provided the context for deciding the jurisdiction in a few
of the Dutch cases which we give a central place to in this chapter, but, of
course, in other continents other bilateral or multilateral treaties with the
same goal (providing rules on jurisdictions) apply. We will not, within the
scope of this chapter, discuss the details of the Brussels Convention29 but
we will briey discuss the instrument that determines jurisdiction and
recognition today in the European Union and subsequently discuss how the
forum issue was decided in some of our Dutch cases.

3.3 Council Regulation 44/2001

Today, jurisdiction issues in the European Union are dealt with by


Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial
matters.30 It applies to all current 27 Member States, including Denmark,
by international Agreement between the European Community and the
Kingdom of Denmark, as a matter of international law.31 In general
terms, we are concerned here with the harmonized rules on civil jurisdic-
tion and the recognition and enforcement of judgments in civil cases
shared by the Member States of the European Union; hereinafter we shall
refer to them as the Brussels I regime (or simply Brussels I, comprising the
case law of the European Court of Justice (ECJ) under the Convention
which remains relevant for most provisions of the current Regulation).
The main rule of jurisdiction of the civil courts under this Brussels I
regime is the defendants domicile, the cited forum rei (Article 2).
However, this Regulation has, as far as relevant for our transboundary
pollution case, retained and amended Article 5(3) of Brussels I which pro-
vides that a person domiciled in a Member State may be sued in another

29 For a detailed discussion and the relevance for transboundary pollution

cases, see the dissertation of Betlem (1993, pp. 23166).


30 OJ L12/1 of 16 January 2001.
31 OJ L299/62 of 16 November 2005. Approved by Council Decision

2006/325/EC of 27 April 2006 concerning the conclusion of the Agreement between


the European Community and the Kingdom of Denmark on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, OJ 2006
L120/22. Ratied by Denmark on 18 January 2007; entry into force: 1 July 2007;
see, <ec.europa.eu/civiljustice/news/what new_en.htm>.
Applying national liability law 141

Member State in matters relating to tort, delict or quasi-delict, in the


courts for the place where the harmful event occurred or may occur. Since
pollution cases are usually cases of non-contractual liability, this rule
could provide victim courts with jurisdiction over transboundary pollu-
tion cases. However, the problem is that the expression place where the
harmful event occurred in Article 5(3) is ambiguous. It is not clear
whether this refers to the place where the damage occurs (the so-called
Erfolgsort) or the place where the emission took place (the so-called
Handlungsort) or to both. This problem arose also in the already discussed
case of the Dutch gardeners against the French potassium mines.
Uncertainty arose concerning the interpretation of Article 5(3) since the
district court of Rotterdam in a rst judgment held that it had no juris-
diction, because, in its view, Article 5(3) only creates jurisdiction for the
courts of the place where the emission took place.32 The latter would have
meant that the victims could only bring a claim in France. On appeal, the
Court of Appeals of the Hague referred the question of the interpretation
of this provision to the ECJ. The court ruled as follows in its meanwhile
well-known ruling in the Bier case:33
Where the place of the happening of the event which may give rise to liability in
tort, delict or quasi-delict and the place where that event results in damage are
not identical, the expression place where the harmful event occurred in Article
5(3) of the Convention . . . must be understood as being intended to cover both
the place where the damage occurred and the place of the event giving rise to it.
The result is that the defendant may be sued, at the option of the plainti, either
in the courts for the place where the damage occurred or in the court for the place
of the event which gives rise to and is at the origin of that damage.

The major advantage for victims of transboundary pollution in the


European context is hence that they can bring a suit in their own State
against foreign polluters who are based in another EU Member State.34 As
a matter of Community law, it is up to plaintis to decide where to bring
the case: they have the option to sue at the place of domicile of the defen-
dant, the place of impact of the pollution (normally the plaintis home
State) or the place of emission. The same applies, under current Dutch law,
where a defendant based outside the EU is sued before a Dutch court.35

32 District court of Rotterdam, 12 May 1975, Netherlands Yearbook of

International Law, 1976, vol. 7, 344, Netherlands International Law Review, 1975,
203 with case note by Verheul.
33 Case 21/76 Bier v Mine de Potace dAlsace, [1976] ECR 1735, 17481749.
34 For a more detailed discussion of the consequences and reasoning in this Bier

decision of the ECJ see Betlem (1993, pp. 92 et seq.) and see Betlem (1993,
pp. 146149).
35 See Strikwerda (2005, No. 217).
142 Transboundary legal context

The issue of jurisdiction was also litigated in a second Dutch case of an


environmental NGO (Reinwater) against a Belgian polluter (Sopar). The
plaintis demanded an injunction against Sopar to discontinue or at least
limit the discharge of PAHs (polycyclic aromatic hydrocarbons) on the
basis of best available technical means. The NGO asserted that Sopars dis-
charges into the Gent-Terneuzen canal, just over the Dutch border consti-
tuted a wrongful act.36 Interestingly, in terms of jurisdiction, the President
of the Court of Middelburg recognized the courts competence on the basis
of Article 5(3) of the Brussels Convention. Moreover, the case is also
decided by the Court of Appeals of the Hague.37 There, it is also noticed
that in fact the defendant Sopar did not object at all to the jurisdiction of
the Dutch courts. In that particular case, Article 18 of the Brussels
Convention was applied, which holds that a court also has jurisdic-
tion simply if a defendant enters an appearance without contesting the
jurisdiction.38
In addition, the Brussels I Regulation attributes competence as regards
a dispute arising out of the operations of a branch, agency or other estab-
lishment, to the courts for the place in which the branch, agency or other
establishment is situated (Article 5(5)). The key aspect of this provision is
that another entity than the branch itself can be sued before the courts of
the location of the branch. In the main that would be the parent company
of the branch if the latter is a separate legal person.39 If the branch is not
an independent legal person, it could not be sued at all and the result of this
provision is that the legal entity constituting the corporation may be sued
not only at its own seat but at the place of the branch as well. The provision

36 First Instance: President of the court of Middelburg, 8 March 1991,

Tijdschrift voor Milieuaansprakelijkheid (Environmental Liability Review), 22 with


case note by Frenk, Milieu & Recht, 1991, 357 with case note by Betlem; Nederlands
Internationaal Privaatrecht 1991, 172. Appeal: Hof Den Haag 19 November 1992,
Kort Geding 1993, 15; TMA 1993, 131 note by De Vries; NIPR 1993, 115.
37 Court of Appeals of the Hague, 19 November 1992, Tijdschrift voor

Milieuaansprakelijkheid (Environmental Liability Review), 1993, 132 with case note


by L.J.A. De Vries; [Belgian] Tijdschrift voor Milieurecht 1993, 153 note by Faure.
The defendants appeal in cassation was unsuccessful, see Dutch Supreme Court:
HR 25 February 1994, NJ 1996, 362 (Rtgers/Sopar v Stichting Reinwater et al.).
38 The same rule is now contained in Art. 24 of Council Regulation 44/2001 and

reads: Apart from jurisdiction derived from other provisions of this regulation, a
court of a Member State before which a defendant enters an appearance shall have
jurisdiction. This rule shall not apply where appearance was entered to contest the
jurisdiction, or where another court has exclusive jurisdiction by virtue of article 22.
39 Cf. Case 218/86 Schotte v Rothschild [1987] ECR 4905 holding that an inde-

pendent company within a group may constitute a branch for the purpose of juris-
diction; remarkably, the branch was sued at the place of the parent.
Applying national liability law 143

is only applicable at all with respect to a branch of a company itself domi-


ciled within the EU; it therefore cannot be used with respect to a branch of
e.g. an American company.40
Where this provision is applicable, it is limited to disputes concerning the
operations of the branch. This notion has been construed by the ECJ in the
Somafer case to encompass both contractual and non-contractual obliga-
tions arising from the activities in which the branch . . . has engaged at the
place in which it is established on behalf of the parent body.41 The Court
circumscribed the activities as pertaining to the management properly so-
called of the branch, such as the state of the building, the engagement of
sta, or contracts entered into at the place of the branch which must be per-
formed within the same Contracting State. This interpretation has been
criticized in the literature and by an Advocate General for being unduly
restrictive as it would seem to limit this forum to acts (including their
impact) within the forum State.42
However, in the subsequent case of Lloyds Register the ECJ made it
clear that there is no such geographical limitation to Article 5(5). This judg-
ment concerned contractual obligations, entered into in France between a
French company and the French branch of the London-based Lloyds
Register of Shipping, which were to be performed in Spain. The ECJ did
not accept the argument that the rule of the forum of the branch requires
a limitation to performance within the State of the branch. Instead, it held
that were the branch forum to be restricted to performance of obligations
within the State of the branch, this rule would be rendered almost redun-
dant in the light of Article 5(1) which already allows the claimant to sue
before the courts of the place of performance of the obligation.43 The
ruling substantially increases the added value of the forum of the branch
compared to Somafer. The same reasoning applies to non-contractual
obligations.44
Accordingly, the Brussels I jurisdiction regime recognizes a limited form
of forum selection purely at the behest of the plainti. It may be added here
that there may be circumstances, e.g. particular procedural mechanisms

40 This follows from the rst line of Art. 5(5) itself, which reads: A person domi-

ciled in a Contracting State may, in another Contracting State, be sued: . . . [empha-


sis added].
41 Case 33/78 Somafer v Saar-Ferngas [1978] ECR 2183 at 2194.
42 Opinion of A-G Elmer in Case C-439/93 Lloyds Register [1995] ECR I-961,

No. 7.
43 Case C-439/93 Lloyds Register [1995] ECR I-961, para. 17.
44 See the Opinion of A-G Elmer at No. 8 and the English Court of Appeal, in

the context of the parallel instrument to Brussels I, the Lugano Convention:


Durbeck v Den Norske Bank [2003] Q.B. 1160 (Re Tropical Reefer).
144 Transboundary legal context

only available there, where the forum of the defendants domicile is selected.
If so, it is important to note that the courts of that State must take juris-
diction over the defendant under Article 2 Brussels I. There has never been
any doubt about the mandatory nature of that rule with respect to civil law
countries such as the Netherlands. However, under English law, a court
does not have to exercise its jurisdiction if another court elsewhere is better
placed to deal with the dispute under the doctrine of forum non conve-
niens.45 Unlike the courts in civil law jurisdictions, English (and other
common law) courts possess inherent discretionary powers to stay an
action commenced by a claimant before it when the defendant is able to
persuade the court that an injustice would be done to him because the
English court is an inappropriate forum and there is a better forum else-
where.46 There was uncertainty whether the mandatory nature as opposed
to the cited discretionary powers of the English courts under their own
rules of jurisdiction of the forum of the domicile under the Brussels I
regime was restricted to intra-Community cases or not. In Owusu,47 the
ECJ held that Article 2 is mandatory and applies in all situations where the
defendant is domiciled in England even where the relationship with a court
outside the EU might be in issue under the doctrine of forum non conve-
niens. It ruled that:

35. . . . Article 2 of the Brussels Convention applies to circumstances such as


those in the main proceedings, involving relationships between the courts of a
single Contracting State and those of a non-Contracting State rather than rela-
tionships between the courts of a number of Contracting States.

Moreover, allowing forum non conveniens in the context of the Brussels


Convention would be likely to aect the uniform application of the rules of
jurisdiction contained therein in so far as that doctrine is recognized only
in a limited number of Contracting States, whereas the objective of the
Brussels Convention is precisely to lay down common rules to the exclusion
of derogating national rules.
Accordingly, also English courts must now accept the mandatory nature
of Article 2 (forum rei) in all situations falling within the scope of Brussels
I and involving a defendant domiciled in England. In other words, the

45 See for more details the Second Report by the International Law

Associations Committee on Transnational Enforcement of International


Environmental Law for the August 2004 biannual Conference in Berlin, supra note
28 and Briggs (2002, p. 94).
46 McClean and Beevers (2005, p. 120).
47 Case C-281/02, [2005] ECR I-1383 (judgment of 1 March 2005); [2005]

I.L.Pr. 25.
Applying national liability law 145

doctrine of forum non conveniens cannot be applied by an English court


when its jurisdiction over the defendant ows from Article 2 Brussels I.
This holds true even where the claimant is domiciled outside the EU. The
domicile of the claimant is completely irrelevant in this regard. After
Owusu, it is now a thing of the past for a situation to occur of completely
dierent treatment of two sets of civil actions against the same England-
domiciled defendant as, for example, took place in Lubbe v Cape,48 where
one group of plaintis was based in an EU Member State and another in
a third country. The defendant Cape was able to invoke forum non cove-
niens (albeit ultimately unsuccessfully) against South African domiciled
claimants but not against those domiciled in Italy. In Lubbe, the House of
Lords recognized that a stay of proceedings under the doctrine of forum
non conveniens would only be possible where Article 2 of Brussels I would
not apply. Essentially the same question as in Owusu was debated but
because the House of Lords had already decided not to grant a stay it was
not necessary in Lubbe to refer the matter to the ECJ. In the post-Owusu
era we now know for certain that all claimants whether based inside or
outside the EU will be able to rely on Article 2 of Brussels I to sue an oper-
ator domiciled in England.49
Finally on jurisdiction, nothing detracts from the above-noted forum selec-
tion opportunities where damage to land is in issue. That is to say that tort-
based claims do not come within the ambit of the exclusive jurisdiction rule
of the Brussels I Regulation dealing with rights in rem in immoveable prop-
erty (Article 22(1) Brussels I Regulation; Art. 16(1) Brussels Convention). It
had already been argued in the literature that a tort-based claim should not
be characterized as coming within the scope of rights in rem within the
meaning of this provision,50 uncertainty remained, however, until the 2006
ECJ ruling in CEZ.51 The case concerns an application for injunctive relief to
an Austrian court by a local authority of Austria, the Land Obersterreich,
against the Czech operator of a nuclear power station (CEZ) based in the

48 [2000] 1 W.L.R. 1545; [2000] 4 All ER 268; [2001] I.L.Pr. 140.


49 See for the possibility to nevertheless invoke forum non conveniens or issue an
anti-suit injunction when there are either arbitration or exclusive jurisdiction
clauses: Through Transport Mutual Insurance Association (Eurasia) Ltd v New India
Assurance Co Ltd (The Hari Bhum) [2004] EWCA Civ 1598, [2005] I.L.Pr. 30 (CA),
case note Merret in [2005] C.L.J. 308; West Tankers v Ras Riunione Adriatica di
Sicurta, sub nom The Front Comor [2005] EWHC 454 (Comm); after a leapfrog
appeal to the House of Lords, the latter case is now pending before the ECJ, see
Case C-185/07, OJ 2007 C 155/9.
50 E.g. by Betlem (1993, pp. 141144).
51 Case C-343/04, [2006] ECR I-4557 (judgment of 18 May 2006), [2006]

I.L.Pr. 25.
146 Transboundary legal context

Czech Republic not far from the border. The plainti alleged that the opera-
tor caused a nuisance by its radioactive emissions and sought to restrain it; it
took the action in its capacity as owner of agricultural land, i.e. not as a public
authority as such. CEZ relied on the exclusive jurisdiction rule for immove-
able property to argue, ingeniously, that the Austrian court had no jurisdic-
tion under the Brussels I regime. At that time, the Czech Republic was not yet
an EU Member State and it was no party to the Brussels Convention. In its
view, the only possible ground for jurisdiction of the Austrian court could
then be Article 16(1) as it applies regardless of the domicile of the defen-
dant. If this provision were to apply, no other basis of jurisdiction may be
relied upon, even parallel rules of domestic law,52 as that would undermine
the operation of the Brussels I regime. However, it also took the view that the
provision did not cover tort-based claims in nuisance so that it too could not
be used to found the jurisdiction of the Austrian court.
Contrary to the Opinion of Advocate General Poiares Maduro, the ECJ
followed a well-established line of authorities which adopts a restrictive
interpretation of the immoveable property exclusive jurisdiction. It noted
that Article 16 deprives parties of any choices of forum and could even have
the eect of a court having exclusive jurisdiction of none of the parties
domicile (para. 27). The Court further refers to the objectives of the exclu-
sive jurisdiction, in short: relevance of land registry and proximity of court
for proper administration of justice. It ruled that an action which . . . seeks
to prevent a nuisance aecting or likely to aect land belonging to the
applicant, caused by ionising radiation emanating from a nuclear power
station situated on the territory of a neighbouring State to that in which the
land is situated, does not fall within the scope of [Article 16(1)] (para. 40).
Accordingly, it is now clear that tort-based claims dealing with land are
not caught by the exclusive jurisdiction of Brussels I for rights in rem in
immoveable property. The full choice of forum under Articles 2 and 5(3)
remains available.53

4 APPLICABLE LAW

4.1 Dutch law

The question of which law will govern the dispute, had been in issue in the
two Dutch cases we have already discussed. Once it has been established
52 See Opinion of A-G Poiares Maduro in CEZ, No. 24.
53 It is beyond the scope of this chapter to examine even further options for
plaintis notably under the rules for provisional measures, see Art. 31 of the
Applying national liability law 147

that a Dutch court is competent to adjudicate the transnational dispute the


question arises given the international character of the case what law
this court will apply: Dutch or foreign (tort) law? Potentially complex liti-
gation about this issue may be prevented by a choice of law by the parties.
This may be in the interest of both parties, including the non-Dutch based
one, as application of foreign law is not reviewable before the Dutch
Supreme Court. For that reason, i.e. to enable him to enjoy the full benets
of litigation in three instances, the French defendant in the French potas-
sium mines litigation about pollution of the River Rhine opted for a choice
of Dutch law. In its rst (interlocutory) judgment on the merits, the district
court of Rotterdam decided as follows:54

concerning the applicable law:


the plaintis regard their actions as being governed by Dutch law, whereas
MDPA in principle prefers the dispute to be adjudged by French law but agreed
at the hearing that the court shall apply Dutch law, because if French law were
to be applied the misapplication of foreign law by the lower courts could not
be pleaded in cassation;
the court acknowledges this subsequent choice of law as a choice of current
Dutch law.

Here one can notice the acceptance of party autonomy with respect to
applicable tort law: if all parties agree that Dutch law applies, this will be
accepted by the court.
Also in the already mentioned Sopar case, an interesting issue concern-
ing applicable law arose. Even though it was not discussed in much detail,
the question whether there was unlawfulness was apparently decided on the
basis of Dutch law by the Dutch courts (district court of Middelburg and
Court of Appeals of the Hague).55 However, the plainti (the NGO
Reinwater) had also reproached Sopar that the discharge permit it had
would not have been legal. In that respect, the Court of Appeals holds: The
Belgian discharge permit (of which for the moment it has to be accepted
that it is valid according to Belgian law) cannot in a summary proceedings
be tested by a Dutch judge according to Dutch norms, unless there would

Regulation and in particular Case C391/95 Van Uden Maritime [1998] ECR I-
7091 as well as Case C-99/96 Mietz [1999] ECR I-2277. See generally Stone (2006,
Ch. 9).
54 District court of Rotterdam, 8 January 1979, Netherlands Yearbook of

International Law 1980, vol. 11, 326, Netherlands International Law Review, 1981,
63 with case note by Duintjer Tebbens, Nederlandse Jurisprudentie, 1979, 113, Ars
Aequi, 1980, 788 with case note by DOlivera.
55 Since it concerns summary proceedings, the judgment did not refer explicitly

to the choice of law issue. See Betlem (1993, p. 174).


148 Transboundary legal context

be a violation of international norms, which has not appeared in this par-


ticular case.
The judge seems to suggest that although Dutch tort law applies, in
judging whether the Belgian discharge permit was lawful, the Belgian norms
of administrative law apply. Another issue is, of course, whether following
the conditions of a foreign licence has a justicatory eect in tort. That is,
however, a substantive issue of tort law (which regards the unlawfulness)
rather than an issue of applicable law and will be further examined below.56
As for the current position on choice of law in cross-border pollution cases
and more generally, mention should be made of the recent codication of
these rules by the Dutch legislature, including a choice of law by the parties.57
In the absence of a choice of law, the rule with which the law governing the
dispute is selected is the lex loci delicti: the law of the place where the tort
occurs.58 This rule is relatively straightforward where an event occurs at a
place where it also causes the loss, such as trac accidents. However, appli-
cation of this rule is problematic when more than one locus may qualify as
the place of the harmful event. In cases where the actual injury occurs in
another country than the one where the act causing this damage took place
(a distance delict) such a situation obtains.59 Just like in the context of juris-
diction, both these places might qualify; we have already seen that the ECJ
has, under the Brussels Convention, ruled to the eect that the plainti can
choose between the court of the place of the wrongful activity and the court
of the place where the loss occurred.60 To date, there is no case law of the
Supreme Court of the Netherlands (the Hoge Raad) on this issue.
However, the cited codication of the Dutch choice of law rules for tort
was used by the legislature to clarify certain matters, including the problem
of localizing the locus delicti in multiple locality situations. The relevant
rules read as follows:

Article 3
Obligations arising from a tort shall be governed by the law of the State, within
which the act took place.
In derogation to section 1, when the act produces a harmful impact on a
person, property or the environment in a State other than the one within which

56 Betlem (1993, pp. 178182).


57 See Tort Choice of Law Act 1999 (Wet Conictenrecht Onrechtmatige
Daad, Stb. 2001, 190, see, <www.overheid.nl/op.>); Strikwerda (2005, No. 180).
58 HR 19 November 1993, NJ 1994, 622 (COVA); NILR 1994, p. 363.
59 Opinion of A-G Strikwerda in HR 9 December 1988, NJ 1989, 203 (Kanthai

and Kanthai/Vardinoyannis), No. 3.8.


60 Case 21/76 Bier v MDPA [1976] ECR 1735; NJ 1977, 94. Subsequent case

law has introduced certain restrictions, see Case C-220/88 Dumez France and
Applying national liability law 149

the act occurred, the applicable law shall be the law of the State where the impact
occurs, unless the tortfeasor could not reasonably have foreseen such impact.

Section 1 lays down the main lex loci delicti rule whereas section 2 pro-
vides a solution to the choice of locus issue. Or, in the terminology used
above, in the context of jurisdiction, section 1 refers to the place where the
emission took place (the so-called Handlungsort) whilst section 2 refers to
the place where the damage occurs (the so-called Erfolgsort). Although the
environment is specically mentioned and the legislatures choice was
mainly based on the compensatory function of the law of tort, there is a
qualication in terms of an unforeseeability exception.61 Since this might
be called an exception to the exception, application of it leads us back to
the main rule: the law of the place where the act took place.
In conclusion, the current Dutch statutory rule on the applicable law for
torts in the absence of a bilateral choice by the parties is a particular man-
ifestation of the lex loci delicti, namely the so-called Handlungsort, or place
where the tortfeasor has acted. As will be seen in the following paragraphs,
this approach is going to be short-lived as the Dutch law will soon be
replaced by yet another EU Regulation.

4.2 EU law: Rome II update

An important development at EU level is the adoption of the so-called


Rome II Regulation in July 2007.62 Like the Brussels I Regulation discussed
above (para. 3.3), Rome II is also a Regulation within the meaning of
Article 249 of the EC Treaty.63 It is a directly applicable instrument of sec-
ondary Community law, which will replace most of the Member States
choice of law rules in the eld of tort law from 11 January 2009. In EU
jargon, it is called Rome II, because it is a complement to an existing
instrument Rome I in the eld of the choice of law rules regarding

Tracoba [1990] ECR I-49, NJ 1991, 573; Case C68/93 Shevill [1995] ECR I415,
NJ 1996, 269; Case C364/93 Marinari [1995] ECR I-2719; NJ 1997, 52 and
Case C-51/97 Runion europenne [1998] ECR I-6511 (judgment of 27 October
1998).
61 Strikwerda (2005, No. 184).
62 Regulation (EC) No. 864/2007 of the European Parliament and of the

Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome


II), OJ 2007 L199/40.
63 See generally Craig and De Burca (2008, p. 83). A Regulation is a type of

Community law most akin to domestic primary or secondary legislation: a


Regulation is of general application [and] binding in its entirety and directly applic-
able in all Member States (Art. 249 EC Treaty).
150 Transboundary legal context

contractual obligations.64 The new legislation harmonizes, within its sub-


stantive scope which does not cover defamation and privacy claims, the
conict of law rules pertaining to non-contractual obligations and contains
both general and specic rules as well as allowing the parties to select the
applicable law by agreement. One of the special rules, Article 7, deals with
environmental damage and reads as follows:

The law applicable to a non-contractual obligation arising out of environmen-


tal damage or damage sustained by persons or property as a result of such
damage shall be the law determined pursuant to Article 4(1), unless the person
seeking compensation for damage chooses to base his or her claim on the law of
the country in which the event giving rise to the damage occurred.

The provision allows the plainti to unilaterally select the applicable


law albeit that the choice is limited to either the place of impact of the
emissions the place of damage, which is the general rule of the
Regulation under Article 4(1) or Erfolgsort or the place where the tort-
feasor had acted, the Handlungsort. Of course such a choice only has
meaning where these places are in dierent Member States but that will
be the case in the classic scenarios of transboundary air or water pollu-
tion as well as cross-border transport of wastes. The provision empowers
plaintis who may opt for the law of the place where the emissions came
from where that law would oer them benets which the law of the place
of harm does not contain. Normally the latter would coincide with the
jurisdiction of the plaintis domicile so that this provision contributes to
enabling plaintis to choose the law with the highest level of protection.
There is some controversy about the desirability of this unilateral choice
as its eect is that plaintis suering harm from abroad can get better pro-
tection than if they were harmed in the same way by a defendant based in
their own country.
However, according to the European Commission, the victims option to
select the law of the place where the tortfeasor had acted (or to select the
law of the place of impact/damage by relying on the general rule) con-
tributes to raising the general level of environmental protection. The place
of damage rule is conducive to a policy of prevention obliging operators
established in countries with a lower level of protection to abide by the
higher levels of protection in neighbouring countries, which removes the

64 See Convention on the law applicable to contractual obligations, Rome,

19 June 1980; latest consolidated version in OJ 2005 C 334/1. A Proposal to convert


the Convention into a Regulation has resulted in Regulation (EC) No 593/2008 of
the European Parliament and of the Council of 17 June 2008 on the law applicable
to contractual obligations (Rome I), OJ 2008 L177/6.
Applying national liability law 151

incentive for an operator to opt for low-protection countries.65 An exclu-


sive application of the place of damage rule is however regarded as an
insucient contribution to the overall objectives of environmental policy;
operators established in border regions could then benet from the lower
levels of protection in a victims home State. In the Commissions view, it is
justied to oer the victim a choice of selecting the most favourable law as
that reects, at the level of choice of law, the policy to raise the general level
of environmental protection in situations where the author of environ-
mental damage, unlike most other torts, usually benets economically
from the harmful activity.66 Furthermore, application of the country of
conducts higher standards in this type of situation is justiable in terms of
party expectations, fairness and State interests. It would be untenable for
operators to argue that they should not be subjected to the standards of
their own country; once a violation has been established they should bear
the consequences of that without being able to invoke application of lower
standards of another State.67 The State of the country of conduct has an
interest in ensuring compliance with its law whereas the State of the
country of impact has an interest in protecting its environment but not in
displacing a rule of conduct of another State applicable to operators acting
on the latters territory by the former States lower standards. To allow for
the displacement of the higher standard undermines the eectiveness of the
higher standard.

5 ACTORS
In this context, the question arises as to who can bring a liability suit, but
also who can be sued.

5.1 Individual victims as claimants

For obvious reasons, this is in cases of (transboundary) environmental pol-


lution always a hot topic. Briey addressing the issue as to who can bring
a law suit, most legal systems will have no diculty allowing the right of
the individual victim who suered personal and direct harm as a result of
the transboundary pollution to bring a law suit. However, in many legal
systems it is a requirement that the plainti must have suered a personal

65 COM(2003) 427 Explanatory Memorandum, p. 19.


66 For a recent endorsement of Art. 7, see Kreuzer (2004, p. 13 at pp. 4041).
67 Symeonides (2004, p. 935, para. 8.3), calling this a classic false conict.
152 Transboundary legal context

harm in order to bring a suit. For the market gardeners in the Bier case, this
was no problem since they could argue that they were completely depen-
dent on drainage water for the spraying of the crops cultivated by them. As
a result of the emissions of salt waste into the River Rhine, the total salt
burden increased and the gardeners suered a diminution of the cultivated
crops.68 They could hence be considered as victims who had a clear and
direct interest at stake and, in those cases, there is usually no discussion on
the standing of the plaintis.

5.2 NGOs as claimants

However, it is well known that in many cases of (transboundary) environ-


mental pollution, the damage may be so widespread that no individual
victim has a sucient incentive to bring a liability suit. Often, it is the public
at large or a large group that suers harm as a result of the transboundary
pollution. In those cases, the question arises whether either environmental
organizations or public authorities can have standing in court.69 Leaving
aside the latter issue for a moment, one can notice that in the already men-
tioned Sopar case, the plainti was a Dutch non-governmental environ-
mental organization, Reinwater. Case law of the Hoge Raad in the
Netherlands recognized, since its judgment of 1986, a right of standing of
environmental organizations.70 Strict requirements apply. For the NGO to
have standing under Dutch law, it was still necessary that there would be a
possible impairment of the interests the NGO purports to promote. In the
Sopar case, defendant Sopar contended before the Court of Appeals of the
Hague that Reinwater had no standing because the interests it allegedly was
protecting were not included among the protected interests in the provi-
sions of the civil code concerning tort law. The Court of Appeals of the
Hague, however, rejected that defence referring to the mentioned case law
of the Hoge Raad and therefore held that Reinwater had standing to ask
for an injunction against Sopar.
In 1992, in the Kuunders case,71 the Hoge Raad conrmed and specied
its 1986 judgment. It referred to ecological interests of individual citizens
which are not suitable for protection by individual actions. A collective

68 Betlem (1993, pp. 394395).


69 For a detailed discussion of these issues, see Betlem (1993, pp. 305348) and
Chapters 8 and 9 of Wilde (2002).
70 Hoge Raad 27 June 1986, NJ 1987, 743.
71 HR 18 December 1992, NJ 1994, 139 note by Scheltema and Brunner; M en

R 1993, 234 note by Kottenhagen-Edzes.


Applying national liability law 153

action by a public interest organization is therefore required, and justied,


to guarantee ecient protection of these interests, according to the court.
These and other rulings have been codied and extended in the Collective
Actions Act 1994, albeit under certain restrictions. The Act has inserted
Article 3:305a into the Civil Code, which reads as follows:

1. An association or foundation with full legal capacity is entitled to entertain


an action for the purposes of protecting interests of other persons that are
similar in kind, inasmuch as it promotes these interests according to its articles
of association.
2. A legal person within the meaning of Section 1 shall not have standing if
and when it has insuciently attempted, in the circumstances of the case, to
reach the result sought by the action by way of consultation with the defen-
dant. . . .
3. . . . An action as referred to in Section 1 cannot relate to damages in money.
4. An act cannot form the basis of an action within the meaning of Section 1 to
the extent that the person aected by it objects to the action.
5. A judgment shall not be binding with respect to a person whose interests are
being protected by the action and who objects to the legal eect of the judgment
as far as he/she is concerned, unless the nature of the judgment carries with it
the impossibility to exclude its eects vis--vis this person alone.

It follows from this provision that standing to sue for an injunction is no


longer an issue under Dutch tort law. Provided that the requirements of this
Article are satised, a group action is admissible. However, there remains
some uncertainty about the standing of an NGO that is not domiciled in
the Netherlands.
Two issues need to be addressed: a preliminary and a substantive one.
The substantive question is whether a non-Dutch NGO has standing to
sue, e.g., a multinational company (based in the Netherlands or otherwise)
before a Dutch court.
The preliminary question underlying this issue is: according to which
law will it (transnational locus standi) be decided by the Dutch court? In
turn, this raises the characterization question of whether the admissibil-
ity issue is procedural, which means the lex fori is applicable, or a ques-
tion dealt with by the law applicable to the substantive tort law issues the
lex causae. In our view, the question must be regarded as a substantive law
issue for Article 3:304 Civil Code reads: A right of action cannot be
severed from the right it serves to protect. Given the close relationship
between the right and the action, the admissibility question will then be
governed by the Dutch conict of laws rule on torts. Assuming that this
rule will point to Dutch substantive law as the lex causae, that legal
system can than be expected to determine the locus standi of the foreign
154 Transboundary legal context

NGO.72 From 2009, the same will apply under Article 15 of the Rome II
Regulation.73
The second issue is an interpretation in an international dispute of the
provision in the Civil Code dealing with locus standi of public interest
groups (Article 3:305a) and already cited above. The relevant question, in
the transnational context, is whether the description of the purpose of an
NGO will match the interest that has been harmed; both in a geographical
and in a functional sense. When answered armatively, a non-Dutch NGO
will have locus standi before a Dutch civil court, in our view. An analogy
can be drawn with a domestic case involving the genetically modied bull
Herman. The genes of the bull were so modied that the milk from cows
it fathered would contain a medicinal component. A legal action was
brought by several organizations, including animal rights groups and envir-
onmental protection groups. The general environmental protection organi-
zations purpose was held by the Dutch court not to be specic enough in
this suit dealing with animals alone; only the claim by an animal rights
group was admitted.74 If one extrapolates this decision to the transnational
context, it follows that an NGO involved in the protection of the environ-
ment in e.g. Nigeria, would have locus standi in a suit involving damage to
the environment in that country allegedly caused by a defendant based in
the Netherlands (or who acted there), provided it can be regarded as an
equivalent to an association or foundation with full legal capacity within
the meaning of Article 3:305a CC.75

5.3 Environmental liability directive and public authorities as claimants

Also, the recent European environmental liability directive (ELD)76 explic-


itly discusses the rights of environmental groups to ask for prevention or
restoration of environmental harm under the scope of the directive.
However, no rights to take any action themselves against operators are
conferred on them by the Directive. They only are entitled to request

72 Cf. Art. 7 of the Conicts of Law in Tort Act (supra note 57), which indicates

that the lex causae will, inter alia, determine who shall be entitled to compensation.
By way of analogy this law should then also decide who should be able to apply for
an injunction, either as a public interest litigant or as an immediate victim.
73 See (f) person entitled to compensation for damage sustained personally.
74 Cited by Robesin (1994, p. 49 at p. 59).
75 Vlas (1993, p. 28) argues that such an organization must be recognized.
76 Directive 2004/35/EC of the European Parliament and of the Council of

21 April 2004 on environmental liability with regard to the prevention and remedy-
ing of environmental damage, OJ L143, 30/04/2004, p. 56; for more details on its
background and implementation please visit , <www.environmentalliability.eu>.
Applying national liability law 155

competent public authorities to take action against operators. Such a


request must be accompanied with evidence about the alleged (imminent)
environmental damage. Judicial review of the authoritys action or failure
to act must be made available.77
Furthermore on the ELD, it may be noted that the only possible parties
entitled to take any legal action against polluters are competent public
authorities. As said, NGOs have no standing to sue operators directly. The
regime has been largely congured as a domestic administrative law regime,
imposing obligations to take preventive or remedial action on operators.
The latter must bear the costs of such measures, either because they took
them themselves or because they were taken by the authorities who are,
under the Directive, obliged to recover those costs from the operator
(subject to certain exceptions). Nevertheless, the ELD contemplates the
eventuality of a cost recovery action against an operator based outside the
Member State within which damage has occurred in Article 15(3), which
reads as follows:

Where a Member State identies damage within its borders which has not been
caused within them [. . .] it may seek, in accordance with this Directive, to
recover the costs it has incurred in relation to the adoption of preventive or
remedial measures.

In fact, even outside this specic rule on cross-border cost recovery, the
question of the territorial scope of the core ELD obligations (Articles 5
and 6) arises.78 Article 15(3) does little more than restate what is already
possible: a Member State is not barred from bringing any recovery actions
so it may of course do so. But is it not also allowed and required to take
action against foreign-based operators under the Directive? This can be
argued with respect to Article 5(3)b ELD stating that the competent
authority may at any time require the operator to take the necessary pre-
ventive measures.79 But how is this cost recovery or order to take measures
against a non-domiciliary supposed to take place under public law?
Administrative law is strictly territorial so any direct action against a for-
eigner must be based on private law, one would assume.80 In fact, the ELD

77 Arts 12 and 13 of the Directive. See for a critical appraisal Krmer (2005,

pp. 131134).
78 Presentation Chris Clarke at ERA Conference on the Environmental

Liability Directive, Brussels, 1213 May 2005.


79 And see its counterpart on remedial action: Art. 6(2)c; under Arts 5(4) and

6(3) ELD the Member States must require operators to take these measures.
80 Hence the existence of a Directive on cross-border enforcement in the eld

of consumer law, see Directive 98/27/EC of the European Parliament and of the
156 Transboundary legal context

mentions the Brussels I Regulation on civil judgments in the Preamble (and


also refers to questions of choice of law):

(10) [. . .] This Directive, which does not provide for additional rules of conict
of laws when it species the powers of the competent authorities, is without prej-
udice to the rules on international jurisdiction of courts as provided, inter alia,
in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial
matters.

If civil actions by public authorities were not envisaged under the


largely public law regime of the ELD, why is the Brussels I Regulation
mentioned at all? A tort action would be a possibility either before the
court of the domicile of the defendant or before the court of the place
where the environmental damage occurred. In fact, it is conceivable that
EC law just does not oppose such a use of national tort law but actually
requires it under Article 10 EC Treaty in conjunction with the duty to
require operators to take measures under the ELD (Articles 5(4) and
6(3)). If a Member State does not make a civil claim available, it can be
argued that it has not correctly transposed the Directive into its own legal
system and will thus be potentially liable to infringement proceedings
under Article 226 EC Treaty. There is support for this view in the context
of cases about protecting the nancial interests of the Community.
Article 10 EC Treaty (Community good faith; loyal cooperation) not just
empowered but also required Member States, in the absence of a public
law cause of action, to recover sums paid contrary to EC agricultural law
on milk levies by way of civil action (including a free-standing damages
claim).81
Analogously, it can be argued that both the protection of the EC envi-
ronment as well as the polluter pays principle in conjunction with the prin-
ciple of eectiveness require that a civil action must be available either
where there is a gap in the public law system or a public law route is impos-
sible or excessively dicult in practice under the so-called Rewe provisos
(principle of equivalence and principle of eectiveness).82 The latter is the
case in cross-border situations.

Council of 19 May 1998 on injunctions for the protection of consumers interests,


OJ L166/51.
81 Case C-230/01 Penycoed [2004] ECR I-937, paras 3638; [2004] 3 CMLR 32.
82 Case 33/76 Rewe [1976] ECR 1989 and Case 45/76 Comet [1976] ECR 2043.

See generally, Craig and De Burca (2008, pp. 305 et seq.).


Applying national liability law 157

5.4 Public authorities as defendants: immunity?

We just mentioned public authorities as plaintis. But if a State is being


sued before a civil court of another State, a further complexity arises: nor-
mally, that State will be able to rely on State immunity as a defence. This
follows from a basic principle of international law, the equality of sover-
eignty of States.83 Under Dutch law, the jurisdictional immunity is
expressed in Article 13a of the General Provisions Act 1829 and further
elaborated in the 1972 European Convention on State Immunity.84
Immunity is not absolute nor does the court take it into account of its own
motion: the foreign State can waive immunity; appearance before a court
without raising the defence constitutes such a waiver. In addition, immu-
nity only covers acts of State, so-called acta iure imperii and not acta iure
gestiones (acts of a commercial nature).85 The 1972 Council of Europe
Convention establishes common rules about the exceptions to immunity,
beginning with submission to the jurisdiction (Article 1), whilst conrming
the basic principle of States entitlement to immunity of jurisdiction.86 The
most important rule of the European Convention in the present context is
Article 11, which reads as follows:

A Contracting State cannot claim immunity from the jurisdiction of a court of


another Contracting State in proceedings which relate to redress for injury to the
person or damage to tangible property, if the facts which occasioned the injury
or damage occurred in the territory of the State of the forum, and if the author
of the injury or damage was present in that territory at the time when those facts
occurred.

It follows that this provision does not lift immunity in the normal trans-
boundary pollution scenario where a polluter acts in one State causing
damage in another. For such a tortfeasor is not present in the State where
the damage occurs. The provision is limited to situations such as trac acci-
dents in State A caused by a vehicle of State B.87 In addition, pure economic
loss is not a recognized head of damage so that losses suered by e.g. the

83 See generally, Brownlie (2003, p. 321) in particular; Chapters 1416 passim.


84 Strikwerda (2005, No. 226); Brownlie (2003, p. 332). The Council of Europe
Convention was signed in Basel, 16 May 1972, Trb. 1973, 43; 11 I.L.M. 470 (1972);
ETS 074; in force for the Netherlands since 1985, see,<http://conventions.coe.int/>.
85 Strikwerda (2005), citing HR 25 November 1994, NJ 1995, 660 Morocco v De

Trappenberg.
86 See Arts. 15 and 24.
87 See the Explanatory Report to the Convention, para. about Art. 11, available

from, <http://conventions.coe.int/>.
158 Transboundary legal context

market gardeners in the French potassium mines litigation would be


excluded from this rule.
Whether State immunity would be an available defence in a scenario of
cross-border pollution caused by States therefore depends entirely on the
characterization of their acts as being either acta iure imperii or acta iure
gestionis.88 Although the test may be somewhat dicult to apply where
State enterprises are involved, it would seem clear that where a State is
alleged to have acted unlawfully because of a lack of supervision of oper-
ators or a breach of EC law in terms of defective transposition of a direc-
tive or the like, it will be deemed to have exercised public authority powers.
Accordingly, a foreign State would be able to invoke the defence of State
immunity if it were sued before a civil court of another State.
What is the law when not a State as such but a regional authority
or a constituent part of a State is being sued? Although the European
Convention does not equate States with other public bodies and spells out
that the latter may be sued in the same way as private parties, pursuant to
Article 27(2), regional or local authorities may likewise invoke the defence
for their acta iure imperii.89

6 WRONGFULNESS

6.1 Strict liability or negligence?

A question that the court will ultimately have to answer within the context
of such a transboundary liability suit is on the basis of which norms and
how to judge whether the pollution caused by the defendant is to be con-
sidered wrongful in the sense that liability of the defendant will ensue.90
Until recently, there was no strict liability for transboundary environmen-
tal pollution in the sense that the polluter would be liable for any damage
resulting from his activity, irrespective of his behaviour. Since almost any
industrial activity creates risk of emissions, a broadly interpreted strict lia-
bility rule may potentially lead to such a far-reaching liability that it may

88 See Dutch Supreme Court: HR 28 May 1993, Russian Federation v Pied Rich,

41 Netherlands International Law Review 116 case note by De Waard (1994).


89 Meanwhile, a UN Convention was adopted in 2004. It is not yet in force. See

UN Convention on Jurisdictional Immunities of States and Their Property, UNGA


Resolution 59/38, available from, <http://unTreaty.un.org> and the articles by
Denza et al. in 55(2) ICLQ 395 et seq. (2006). Article 12 UN Convention is virtu-
ally identical to the cited tort provision of Art. 11 European Convention.
90 For a discussion of this unlawfulness issue, see also Betlem (1993,

pp. 349442).
Applying national liability law 159

create a liability risk for any industrial activity. Especially in the trans-
boundary context this may be problematic. In most transboundary pollu-
tion cases, one could therefore see the application of (a variation of) the
negligence/nuisance rule. Depending upon the specic formulation, it
would be examined whether the behaviour of the defendant was such that
the pollution passed a certain threshold and therefore gave rise to liability.
Also, as far as State liability under international law is concerned, legal doc-
trine indicates that a nding of liability will depend upon a balancing of
various factors.91 This became, for example, clear in the Trail Smelter case
where it was held that under the principles of international law no State
has the right to use the territory or permit the use of it in such a manner as
to cause injury by fumes in or to the territory of another or the properties
or persons therein, when the case is of serious consequence and the injury
is established by clear and convincing evidence. Such balancing in this
well-known passage is reected in the fact that there is apparently liability
only when the case is of serious consequence which implies that there is a
certain level of pollution that must be accepted by the victim; only when a
certain threshold is passed may liability be accepted.
However, since 1995, the Dutch Civil Code includes a number of envi-
ronmentally relevant strict liabilities. The main one is laid down in Article
6:175 CC. Its key elements may be translated as follows:

1. He who, in the exercise of a profession or trade, uses or possesses a sub-


stance known to have such qualities so as to constitute a serious risk to
persons and property, shall be liable when this risk materialises. Those using or
possessing the substance shall include legal persons, in the exercise of their
purpose. A serious risk shall be deemed to exist in any event where the sub-
stance is explosive, inammable . . . toxic according to Article 34(3) of
the Environmentally Dangerous Substances Act [transposing the relevant
EC Directive on the classication, packaging and labelling of dangerous
substances].92 . . .
4. Where the damage is a result of pollution by the substance of the air, water or
soil, the liability under S. 1 shall lie with him who at the commencement of the
polluting incident was designated as liable person under that provision. Where
contamination is a result of exposure to the substance deposited into the water
or the soil in a packaged condition, the incident shall be deemed to have com-
menced at the time of deposition. . . .
6. A substance shall be deemed to satisfy the characteristics of Section 1 if and
when it is so designated by Statutory Instrument. . . .

91 For a discussion of the evaluation of State responsibility under international

law see Sands (2003, pp. 134 et seq.); Horbach (1996) and Lefebre (1996).
92 Directive 67/548/EEC, OJ 1967 L196/1, as amended and updated many

times.
160 Transboundary legal context

It follows that this provision lays down a no-fault liability for dangerous
substances. The professional user of a dangerous substance is liable for
damage caused by this substance; in the event of pollution, liability is con-
nected to the person who was in possession of the substance at the time of
the event leading to the damage. How is dangerous substance dened?
This regime adopts an open system by referring to known properties but
with an indicative list. Substances are deemed to be dangerous if placed on
a list under a Statutory Instrument.
It may be noted that the regime had been vigorously opposed by Dutch
industry for many years. Litigation with a crippling impact on companies
was predicted. What has happened so far? Certainly not a deluge of cases.
As far as we are aware from any published sources and from interviews with
lawyers in the eld, there is only one case so far.93 What are we supposed to
think about that? That is hard to say. Are the rules simply irrelevant or is
there a preventive eect? An informed answer would need empirical
research. In any event, one conclusion can be drawn. The so-called
oodgates have not been opened: companies are not inundated by claims
nor is there any indication that the existence of this regime has caused any
problems to Dutch industry.

6.2 Violating a regulatory norm or a duty of care

A nding of liability in a negligence regime presupposes that the plainti


proves that the defendant violated a standard of due care. In most legal
systems, a distinction is made between two situations: on the one hand the
situation where a specic regulatory regime exists (for example emission
standards in a permit) which has been violated, and on the other hand the
situation where no such regulatory regime is at hand. In most legal systems,
the rst situation is the relatively easy one: many legal systems hold that as
soon as a defendant violates a specic regulatory standard prescribing or
prohibiting a certain behaviour, wrongfulness is automatically given. It is
sometimes referred to as a per se rule of liability.
This type of liability rule was in fact applied in the Sopar case discussed
earlier. The Court of Appeals of the Hague established that the defendant
Sopar violated the norms laid down in the Belgian licence: Reinwater
argued that Sopar discharged more than 100 micrograms of PAHs per litre
whereas the permissible quantities as set forth in the discharge permit were

93 Rechtbank Rotterdam 11 March 1999, TMA 2000, 119 (Van Brink

Shipyard), with summary in English; cited by Bauw and Brans (2003, p. 159).
Although the strict liability was accepted, the court ruled that there was no causal
connection between the event giving rise to the liability and the losses in issue.
Applying national liability law 161

30 micrograms per litre. Considering that Sopar grossly disregarded the


conditions of its Belgian permit, the Court of Appeals of the Hague had
no diculty in allowing Reinwaters claim for compliance with the permit.

6.3 Breach of foreign law

The Sopar rulings are entirely consistent with the landmark Interlas judg-
ment by the Hoge Raad.94 This case established two important rules. First,
the Dutch Supreme Court held that breach of a statutory duty within the
meaning of Dutch tort law (i.e. Article 6:162 Civil Code) covers any breach
of an Act of Parliament, or a norm laid down in secondary legislation
(either of a public or of a private law nature), whether of Dutch or foreign
origin. In other words, where the defendant has acted contrary to an oblig-
ation of the domestic law of another country than the Netherlands, this is
still a breach of a statutory duty. That concept is therefore not limited to
breach of Dutch statutes. It follows that such foreign obligations can be
enforced by Dutch courts, provided, of course, they have jurisdiction over
the defendant in the rst place. The issue of breach of foreign statutory
duty must not be confused with the question of the choice of law in tort. It
is only after it had rst been established that Dutch tort law governs the
dispute that this rule as a rule of Dutch law applies. The second rule of
Interlas will be examined below (section 7).
More complicated are, of course, the cases where there is no breach of a
written duty (Dutch or foreign) and therefore the court must examine in
general whether the behaviour of the defendant was reasonable. Usually
legal systems will apply some kind of a Roman law based bonus pater famil-
ias standard to compare the behaviour of the defendant with the behaviour
of a normally diligent person in the same circumstances in order to decide
whether the defendant should be held liable or not.95

6.4 Cases

The Bier case against the Alsatian Potassium Mines nicely shows the type
of elements that have to be taken into account when judging the unlawful-
ness of the defendants discharges. The Hoge Raad holds:

The criterion should be that whether a party who discharges substances into a
river fails to observe its duty of care towards those using the river-water

94 HR 24 November 1989, NJ 1992, 404 (Focus Veilig/Lincoln Electric

Company).
95 See for the dierent approaches in this respect Widmer (2005).
162 Transboundary legal context

downstream depends on the nature, seriousness and duration of the damage


caused to the latter and on the other circumstances of the case, among the
factors to be considered here are, on the one hand, the nature and importance
of the interests served by the discharges and, on the other hand, the interests
served by the use of the water downstream and the extent to which this use is
liable to be aected by the substances discharged. It should be borne in mind
that in weighing up the respective interests, special importance must be attrib-
uted to the interests of the user downstream and that such a user may in princi-
ple expect the river not to be polluted excessively by large discharges.

As far as the duty of care of the defendant is concerned, the Hoge Raad
repeats the considerations held by the Court of Appeals:

In order to answer the question whether MDPA acted in breach of this duty of
care, it is necessary to weigh its interests against those of the market gardeners.
It has to be borne in mind in this connection that the mutual interests are of a
similar kind in that of the interests of both parties are of a nancial and com-
mercial nature.

The Court of Appeals and subsequently the Hoge Raad therefore held that
the MDPA violated its duty of care towards the market gardeners and held
the defendant liable. Of course, this balancing test based on the reason-
ableness of the discharges is more exible and less clear cut than a case
where a clear regulatory standard has been violated. The formula provided
by the case law of the Hoge Raad is based on a balancing of all the rele-
vant interests and circumstances of the case. Apparently, the Hoge Raad
was of the opinion that the interests served by the users of the water down-
stream had to be given a higher importance than the nature and importance
of the interests served by the discharges.
There is a third Dutch case which is worth mentioning in this respect
because of the way in which the balancing of interests took place. It con-
cerns a ruling of the President of the Court of Maastricht of 3 February
199396 about, again, a claim by the NGO Reinwater. This time, trans-
boundary pollution of the River Meuse was at stake by, inter alia, Cockerill
NV, a large factory situated in Belgium which allegedly emitted large quan-
tities of, again, PAHs.97 In judging whether there was unlawfulness of the
emissions of PAHs, the President of the District Court of Maastricht held
that there is only unlawfulness if the amounts of emitted PAHs would
exceed every reasonable limit. The President held that Cockerill would

96 Tijdschrift voor Milieuaansprakelijkheid (Environmental Liability Review),

1993, 137.
97 See generally on transboundary pollution cases concerning the River Meuse,

Van Dunn (1996).


Applying national liability law 163

discharge a yearly amount of PAHs of 30 kilograms. This would be approx-


imately equal to the same amounts which would be discharged today by a
similar corporation in the Netherlands. Hence, in this particular case, the
judge in the victim State compares discharges in the polluter State with dis-
charges of a comparable polluter in the victim State to judge whether the
polluter has acted as bonus pater familias. Since the judge held that the
foreign polluter would basically discharge the same quantity as a similar
polluter in the victim State, the court ruled that there was no unlawful-
ness.98 However, Reinwater still obtains a modest success since the defen-
dant Cockerill is required to produce information and obtain samples and
measure the quality of its waste water twice a week and to provide the
results of the analysis to Reinwater and this under a penalty payment of
10,000 Dutch guilders99 for each day that Cockerill would be in default.
Another type of question could still arise, being whether compliance
with an explicit regulatory standard would have a justicatory eect in a
liability suit. We will address this issue in section 8 below.

6.5 Environmental liability directive

Finally we should, as far as the unlawfulness issue is concerned, mention


that within Europe environmental liability of operators is now to a large
extent covered by the already mentioned environmental liability directive
which also has consequences for cases of transboundary environmental
pollution falling under the scope of the directive. However, important ele-
ments of the regime have been deliberately left to the national laws of the
Member States. Put dierently, they have not been harmonized. This
includes the permit or regulatory compliance defence and the State of the
Art defence.100 Indeed, the Directive does not cover any liability between
private parties inter se by excluding all so-called traditional damage from
its scope (it only concerns environmental damage as dened by the
Directive).101

198 Nevertheless, it appeared that this nding of the judge was based on a

mistake in calculation. De facto, there was a considerable dierence between the


amounts discharged by the two factories in the dierent states.
199 Today, this would amount to approximately 5,000.
100 Art. 8(4) ELD.
101 See Preamble, recital 14, which provides as follows: This Directive does not

apply to cases of personal injury, to damage to private property or to any economic


loss and does not aect any right regarding these types of damages, and Art. 3(3),
which reads: Without prejudice to relevant national legislation, this Directive shall
not give private parties a right of compensation as a consequence of environmen-
tal damage or of an imminent threat of such damage.
164 Transboundary legal context

7 APPLICABLE REMEDIES

The type of remedy sought by a plainti will in these type of (transbound-


ary) pollution cases often be closely related to the nature of the plainti.
When the plainti is a traditional victim suering personal injury or eco-
nomic losses, the plainti can, depending upon the rules in his national
legal system, obtain damages that should in principle aim at restoring the
victim in the status quo ante. NGOs can ask for either an injunction aiming
at preventing further harm by ordering the defendant to stop the polluting
discharges or to restore harm done. In practice, there may be overlap
between the reparation in kind and the injunction.102
The Hoge Raad decision concerning the Alsatian potassium mines made
clear that there is a dierence between a claim for compensation of costs (or
economic losses) on the one hand and an injunction asking de facto that the
polluting activity would be stopped on the other hand. The Dutch market
gardeners asked in their case against the Alsatian mines to be paid the costs
of additional measures which they had to take as a result of the wrongful dis-
charges of salt waste by the MDPA into the River Rhine. The defendant
argued that holding against them in a liability case could lead to serious
damage to the socio-economic interests of the whole region. It might mean
that MDPA would have to shut down with a loss of many jobs as a conse-
quence. The Hoge Raad, however, was not impressed with that argument and
clearly indicated that the plaintis in the case (Bier and other market gar-
deners) do not ask an injunction in which they ask either the shut down of the
enterprise or of the wrongful discharges. The gardeners only claim recovery
of additional costs they incurred themselves. The Hoge Raad therefore held:

The court of appeal rejected MDPAs argument that if it were forced to stop the
salt discharges, it would have to close down the mines altogether and its interests
would thus be gravely aected. The ground for rejection was that in advancing this
argument MDPA overlooked the fact that an application had been made not for
an injunction to hold the discharges but for compensation for the damage caused
by them. It does not follow from this that the alleged unlawfulness should be
judged dierently according to whether an injunction or compensation is being
sought or that the discharges are not in themselves unlawful but are tortious only
in conjunction with MDPAs failure to pay compensation for the damage.
...
As it therefore does not automatically follow from a courts nding in favour of
plainti seeking compensation that an application for an injunction would like-
wise have to be granted if it were lodged, it was possible for the court of appeal
to disregard MDPAs interest in the continued operation of the mines.

102 See Betlem (1993, pp. 491493).


Applying national liability law 165

Accordingly, in principle, no dierent standard of unlawfulness applies, but


in case an injunction is sought, an additional test will be applied. In the
latter case, social (more particularly employment) interests may be weighed
to examine whether the injunction should be granted when the behaviour
of the defendant has been qualied as unlawful.103
The two other Dutch cases mentioned showed that the plaintis (NGOs)
asked for an injunction and obtained their injunction. However, in both
cases the scope of the injunction was relatively limited. The Court of
Appeals of the Hague ordered in its decision of 19 November 1992 defen-
dant Sopar to fully comply with all conditions of its permit with a
penalty of 50,000 Dutch guilders104 for each day that it remained in non-
compliance. As we mentioned above, the President of the Court of
Maastricht held in her decision of 3 February 1993 that Cockerill was
required to produce information and make measurements available to
Reinwater twice a week, again under the threat of a penalty payment. The
penalty payment is added in each case to guarantee that the injunction
which has been ordered by the court will also be complied with.
In principle NGOs do not have the right to claim damages for the
damage to the environment itself. The NGO can, on the basis of its inter-
est as dened in its purpose, have standing to ask for an injunction which
may lead to prohibiting actions which may endanger the interests it serves.
But because the NGO does not own the environment of which it purports
to protect the interests, it cannot claim damages for the harm that would be
caused. There is, however, one important exception to this rule in case an
NGO would incur costs to e.g. clean birds if that would be the stated inter-
est of the particular foundation. There is a 1991 Dutch rst instance judg-
ment conrming this possibility but, before discussing it, we would like to
place the ruling in the wider statutory context, including international con-
ventions, which is about claiming compensation for preventive measures.

7.1 Article 6:184 Dutch Civil Code: costs of preventive measures105

This provision provides that damage includes the costs of reasonable mea-
sures to prevent or limit the damage taken by any person after a serious and
imminent threat of occurrence of such damage has arisen; it is a lex spe-
cialis complement to the strict liability for dangerous substances cited
above (Article 6:175 CC). The crucial added value of this special regime

103 See on this dierence Betlem (1993, p. 495) and below section 7.1.
104 Today, it would be approximately 25,000.
105 This section is based on Betlem (2002, p. 131).
166 Transboundary legal context

compared to the general law of damages under the Civil Code is the explicit
inclusion in Article 6:184 CC of the phrase: taken by any person. There is
not necessarily a dierence in substance though because even under the
general provisions on Dutch law of damages, such costs are recoverable as
a matter of course. For Article 6:96 CC refers to reasonable costs of pre-
venting or limiting the loss. Although this provision does not indicate who
may be entitled to claim these costs, it is argued in doctrine that in addition
to the victim who personally suers loss, third parties may be likewise enti-
tled.106 It follows, in this view, that claims for recovery of costs by govern-
mental bodies and NGOs if and when they have taken such measures are
included under both the general Dutch law of damages and the special pro-
vision on recoverable loss under the strict liability for dangerous substances
(Article 6:175, examined above). Also, as will be seen below, the reference
to any person of Article 6:184 CC is in line with similar provisions in inter-
national conventions and enables third parties to recover their costs.
However, there is a further rule under Article 6:184 CC (damages in
context of strict liability for dangerous substances) that qualies this basic
starting point for the situation where these measures are taken by others
than those who would actually suer the loss. These third parties can only
claim what the real victims would have been able to claim had they taken
the measures themselves. The provision (section 2 of Article 6:184) thus
introduces a somewhat complex hypothetical element. The initial actio
popularis, i.e. a claim for costs for recovery of measures taken by whomso-
ever (third party), is linked to recoverable loss by a hypothetical rst party
victim: if the latter cannot recover certain losses the former cannot do so
either. This restriction is particularly relevant in claims by a governmental
body e.g. a claim after a clean-up operation on a beach cannot include
parts of the costs related to general environmental policy on prevention of
pollution as well as by NGOs. The costs of preventive measures cannot
be recovered for loss which does not entail any other persons property
damage or pure economic loss. Typically, damage to the unowned environ-
ment e.g. wild birds as res nullius does not entail anybodys patrimonial
loss.107 Claims by NGOs are therefore limited under this system. If as a
result of an oil spill or other contamination covered by this regime, seabirds
are aected and costs are incurred to restore the damage to these birds,
these cannot be claimed because they have no owner nor another econom-
ically interested potential real victims such as in the case of shermen.108

106 Messer (1994, p. 123).


107 See generally (in Dutch) Carette (1997).
108 Messer (1994, p. 127); Frenk and Messer (1991, p. 14 at p. 16).
Applying national liability law 167

Although in the absence of case law there is a lack of clarity about the exact
limits of the scope of this provision, it does seem to exclude recovery of
clean-up costs in a situation where nobody would be able to suer any prop-
erty damage or economic loss.109
The result of this linkage between the costs of preventive measures
incurred by third parties and classical property or economic damage is a
somewhat surprising distinction between species of wild animals. George
Orwell, however, probably would not have been surprised, after all some
animals are more equal than others. This is all the more peculiar and ironic
as NGOs have been able to claim the costs of remedying damage to seabirds
not under this special regime but under the general tort law rules of the
Dutch Civil Code. One could thus argue that an NGO taking preventive
measures does not act as a third party at all but simply recovers costs as a
rst party victim; the restriction regarding third party claims of Article
6:184(2) CC would then not be applicable.110 However, in our view, NGOs
do not seem to be able to get around the restrictions of this provision as
their claim entirely consists of the costs of preventive measures; unlike a
real victim who would incur such costs in order to prevent or limit other
loss he would suer.111 With respect to the NGO even if one would regard
it as a primary victim they have no other loss than these costs. It would
follow that they cannot rely on the strict liability for dangerous substances
to claim these costs but would have to fall back on the general tort law rules
of the Dutch Civil Code. As said, that is possible since a 1991 judgment.

7.1.1 Borcea
The Borcea case112 is particularly relevant from a comparative perspective,
both in terms of the dierence between the strict liability regime of Article
6:184 CC and the general Dutch damages rules as well as in terms of com-
paring this case to environmental liability regimes under international con-
ventions (below para. 7.1.2). The facts are as follows. A Romanian bulk
carrier leaked oil (which was used as fuel) close to the Dutch coast.
Thousands of aected birds were found on the beaches of the provinces
Zeeland and Zuid-Holland. The Dutch Association for the Protection of
Birds, whose purpose according to its articles of association is the protec-
tion of wild birds by all lawful means, operates bird-asylums/bird-shelters.
They incurred costs by transporting the birds from the beaches to the

109 See also Spier et al. (2006, No. 133); Bauw and Brans (2003, pp. 4953).
110 Bauw and Frenk (1991, p. 1259).
111 See Betlem (1999, p. 133 at p. 141).
112 District court Rotterdam 15 March 1991, (1992) 23 Netherlands Yearbook of

International Law 513.


168 Transboundary legal context

asylums, by cleaning them etc; in short, they incurred bird clean-up costs.
For the rst time, the district court Rotterdam allowed a public interest
groups action for damages for such costs. In an interlocutory judgment
the plaintis were ordered to substantiate proof of a sucient causal con-
nection between the damage and the allegedly tortious conduct of the
vessels captain it held the following concerning the plaintis entitlement
to an action for damages:

. . . according to contemporary societal views, the conservation and protection


of seabirds is a general interest worthy of protection in the Netherlands . . . it is
also the plaintis own interest; . . . when that interest is harmed, not only an
injunction is admissible, but also a claim for compensation for damage which
was incurred due to limiting the consequences of the infringement of that inter-
est. (emphasis added)

It follows that bird protection organizations can claim damages for costs
voluntarily incurred due to their bird protection activities; in the case in
hand, the parties reached a settlement for 100,000 Dutch guilders.113 One
of the decisive factors for the court was that the plainti pointed out that,
to a certain extent, it carried out State tasks, since it was designated by the
Ministry of Agriculture and Fisheries as coordinator for oil disasters. The
Rotterdam court accepted that the general interest of environmental pro-
tection does not only have to be pursued by the State (or other public
authorities): it is not necessarily a State monopoly. It drew the logical con-
clusion by allowing the NGO to proceed with a claim on a similar footing
as the public authorities.114
Regarding precisely what costs the bird protection organization claimed,
the following may be noted. On the one hand the costs of transporting the
birds and cleaning them were claimed; on the other, part of the overhead
costs of the bird asylums. Both types of costs are recoverable under well-
established case law of the Dutch Supreme Court.115 Especially interesting
is that these costs in fact concerned the reparation (as far as possible) of
ecological damage, i.e. damage to birds which belong to nobody. In this
respect, as said, given the cited restriction under Article 6:184 CC, there is

113 See De Volkskrant of 13 February 1992, 7.


114 Ironically, the states claim for clean-up costs eventually failed on the ground
of lack of causal connection between the loss incurred and the alleged unlawful
failure to report the oil spill, see Borcea II: District Court Rotterdam 24 February
1995, Tijdschrift voor Milieu en Recht 1996, No. 43, Tijdschrift voor Milieu
Aansprakelijkheid/Environmental Liability Law Review 1996, 6.
115 See Asser-Hartkamp (2004, No. 414) and the above-mentioned costs of

preventive measures.
Applying national liability law 169

a wider protection under general tort law than under the specic liability
for dangerous substances. The disadvantage for the NGO is, however, that
it cannot benet from the strict liability to claim these costs.
Insofar as they can be claimed, the costs were incurred while limiting the
consequences of an oil spill. We shall see in the next section that the result
of this Borcea case viewed in terms of damage limitation measures is
in keeping with denitions of compensable loss under various interna-
tional conventions; as such there is international consensus about allow-
ing this claim.

7.1.2 International conventions


On rst sight, the damages claim for NGOs would not be allowed under the
Council of Europe Lugano Convention.116 Article 18 deals with Requests
by Organisations and entitles NGOs to bring the following actions:

a prohibition of an unlawful dangerous activity which poses a grave


threat of damage to the environment;
an order for the operator to take measures to prevent damage, before
or after an incident;
an order for the operator to take measures of reinstatement.

These are three actions for an injunction as the provision does not include
damages. However, the rules on locus standi are not the nal answer. We
must also look at the denition of compensable loss to get the complete
picture on possible actions by NGOs and then we see a dierent picture.
That is to say that just as noted above under Dutch law the Lugano
Convention includes the possibility to claim the costs of preventive mea-
sures. It denes them in Article 2(9), which reads as follows:

Preventive measures means any reasonable measures taken by any person, after
an incident has occurred to prevent or minimise loss or damage as referred to in
paragraph 7, sub-paragraphs a to c of this Article. (emphasis added)

This denition is a widely adopted formulation of the concept of recov-


erable costs of preventive measures;117 it rst appeared in the maritime law

116 Convention on Civil Liability for Damage resulting from Activities

Dangerous to the Environment, Lugano, 21 June 1993, European Treaty Series 150
(<http://conventions.coe.int>), 32 International Legal Materials (I.L.M.,1993);
not in force; signed by Cyprus, Finland, Greece, Iceland, Italy, Liechtenstein,
Luxembourg, the Netherlands and Portugal.
117 See generally Larsson (1999, pp. 172 et seq.) and see Kottenhagen-Edzes

(1998, p. 207).
170 Transboundary legal context

sector, from which it has been copied.118 The same denition has subse-
quently been adopted in numerous other conventions including the so-
called HNS Convention,119 the 1997 Vienna Convention on Civil Liability
for Nuclear Damage120 and the 1999 Basel Protocol on Liability for
Damage resulting from the Transboundary Movement of Hazardous
waste.121
Since these provisions grant the right to claim the costs of preventive
measures taken by whomsoever or by any person, public interest groups
are entitled to a claim for reimbursement if they have incurred such costs.
This view is supported by the case law of the International Oil Pollution
Compensation Fund (IOPC Fund), where it decides on claims under the
1969 Oil Pollution Convention.122 With respect to preventive measures it
has recognized that clean-up measures by voluntary groups . . . satisfy the
requirements for consideration as preventive measures and are thus recov-
erable in the context of the Fund.123 Comparable to the cited Dutch Borcea
case, the Fund has ruled in the Braer case that the costs of caring for
injured wildlife by environmental protection groups are recoverable pro-
vided, of course, they were reasonably incurred.124
In conclusion, the possibility of damages claims by NGOs under
certain circumstances has been accepted by most States in the context of
relevant international conventions, i.e. those dealing with civil liability of
operators for activities causing damage to the environment such as
nuclear incidents, oil spills and other hazardous substances. Provided
NGOs are legally capable of carrying out remedial actions, they will
be able to claim the costs thereof from those responsible for the
damage. Certain restrictions applicable under the Dutch regime of no-
fault liability for dangerous substances are in fact out of step with these

118 See Art. I(7) of the 1969 International Convention on Civil Liability for Oil

Pollution Damage, Brussels, 29 November 1969, Tractatenblad 1970, 196; 9 I.L.M.


45 (1970), as amended.
119 International Convention on Liability and Compensation for Damage in

connection with the Carriage of Hazardous and Noxious Substances by Sea,


London, 3 May 1996, 35 I.L.M. 1406 (1996), <http://etcher.tufts.edu/multi/texts/
IMO.txt>.
120 Consolidated text of the Vienna Convention on Civil Liability for Nuclear

Damage of 21 May 1963 as amended by the Protocol of 12 September 1997, 36


I.L.M. 1454 (1997), <http://www.iaea.org/GC/gc41/documents/gc41inf13a1.html>.
121 Basel, 10 December 1999, <http://www.basel.int> for the text and signa-

tures/ratications; see generally French (2000, p. 3).


122 Supra note 118.
123 Gauci (1997, p. 36) referring to FUND/EXC.34/9, 12 March 1993, 3.28.
124 Wu (1996, p. 291), referring to FUND/EXC.34/5/Add.1, 1 March 1993, p. 9.
Applying national liability law 171

international developments. However, if and when the NGOs are able to


rely on the general tort rules, Dutch law is in line with the international
conventions.

7.1.3 Other recoverable costs: detection costs


Finally in this context, the question arises to what extent the Borcea case
damages for bird clean-up costs under general Dutch tort law is a prece-
dent for other claims of environmentalist organizations than the reim-
bursement of these bird clean-up costs. One could think of the costs of
sampling and other research costs. Above we have already mentioned the
Cockerill Sambre case (section 6.3) and its injunction requiring the defen-
dant to provide information. In addition, the Court of Appeal Den
Bosch in 1998 upheld a ruling of a lower court in the case of Edelchemie
(in English: Noble Chemistry).125 Essentially, it was held that the
plaintis/NGOs are entitled to an advance of 20,000 Guilders126 for the
costs they had incurred in commissioning technical experts for measuring
the defendant/operators emissions. The case involved nuisance in the form
of unpleasant odours produced by a photochemical plant. One of the con-
ditions of the licence it was operating under contained a standard pre-
scribing a certain level of smell-units as an hourly average per cubic metre
near neighbouring homes and oces during more than 2 per cent of the
time. The operator systematically did not comply with this norm which
constitutes breach of a statutory duty under Dutch tort law.
Accordingly, the main action was for an injunction ordering the operator
to fully comply with its licence. The court granted the order as well as the
usual periodic penalty payment (the sanction for non-compliance with court
orders under Dutch law), in this case 25,000 Guilders per day of non-
compliance with the courts order. In addition, the claim for compensation
for detection costs as said was granted. The court refused to uphold the
plaintis third claim, which was to order the operator to commission an
independent expert to measure emissions and to send the results to the
plaintis. The judge stated that this would amount to a reversal of the burden
of proof in that the defendant must prove it does not act unlawfully. This
burden is with the plaintis to prove unlawful action. It may be noted in
passing, that this aspect of the ruling illustrates that Dutch law would benet
from changes to the EU regime which like the Lugano Convention127 and

125 District court Roermond 9 January 1998, unreported, cause list No.

24453/KGZA 97-288); conrmed on appeal by Court of Appeal Den Bosch 26


August 1998, Tijdschrift voor Milieu en Recht 1999, No. 22.
126 Currently some 10,000.
127 See supra note 116.
172 Transboundary legal context

German law128 should contain a right to environmental information for


plaintis to be exercised against operators.
The most notable point about mentioning this case here is that since it is
up to the plainti to furnish proof, the costs to do so are recoverable not
only where private persons or companies sue but also in actions brought by
NGOs. In itself this is no surprise at all as it merely means that once
the access hurdle has been taken, the NGO as any plainti can simply
invoke the normal rules of tort law and civil procedure, including the
law of damages. The latter includes Article 6:96 CC which denes the
concept of material loss in broad terms (S. 1. Patrimonial damage com-
prises both the loss sustained by the creditor and the prot of which he has
been deprived.) The provision also lists some categories of recoverable
costs:

2. Furthermore, the following costs may be claimed as patrimonial damage: rea-


sonable costs to prevent or mitigate damage which could be expected as a result
of the event giving rise to liability;129

reasonable costs incurred in assessing damage and liability.

This latter category is closely connected with a partys capacity as


plainti in a civil action rather than with the more substantive notion of
victim or person actually suering loss himself. Therefore, such a claim by
an NGO fairly and squarely ts in with the system of the law of damages,
the law of tort and civil procedure. Accordingly, what has been termed
detection costs are nothing but a specic application in an environmental
context of the general notion of costs involved in assessing damage and lia-
bility. Like the recovery of costs of preventive measures, these costs are
recoverable by NGOs without the need for any additional rules on locus
standi or rules on access to remedies. Both types of damages claims are
implicit in the concepts of the law of damages.

128 Messer (1994, p. 175) referring to the Umwelthaftungsgestez (Environmental

Liability Act), the Gentechnikgesetz (Genetic Technology Act) and the


Bundesberggesetz (Federal Mining Act).
129 Recovery of these costs is the necessary complement of the victims duty to

exercise reasonable diligence to limit the extent of the loss. This duty to mitigate loss
has been recognized as a general principle of European tort law by the European
Court of Justice, see in particular joined cases C-46 and C-48/93 Brasserie
du Pcheur and Factortame [1996] ECR I-1029 and joined Cases C-397/98 and C-
410/98 Metallgesellschaft and Others [2001] ECR I-1727 (judgment of 8 March
2001).
Applying national liability law 173

7.2 Cross-border injunctions

Above we cited the Interlas judgment by the Hoge Raad and noted that two
important rulings are included.130 The rst one dealt with breach of foreign
statutory norms and was discussed above in section 6.2. The second one con-
cerns the availability of injunctions which must be complied with outside the
Dutch jurisdiction. Also in this respect the Sopar rulings are entirely consis-
tent with Interlas, where the Hoge Raad ruled on the territorial scope of an
injunction granted by a Dutch court. It held that court orders which require
defendants to comply with their obligations can be granted also when such
compliance must take place outside the Netherlands. To be exact, the Sopar
judgment of the the Hague Court of Appeals fully matches the ratio deci-
dendi of the Interlas judgment, for that provides as follows:

4.2.4 (. . .) Unless the law, the nature of the obligation or a juridical act produce
a dierent result, the person who is obliged to give, to do or not to do something
vis--vis another, is ordered to do so by the court upon the demand of the person
to whom the obligation is owed. In general there is no reason to accept that such
an order cannot be given when the obligation possibly an obligation under
foreign law is to be complied with outside the Netherlands. A more restrictive
view as upheld in the cassation pleadings has no basis in law and would have, in
a time of increasing international contacts, the undesirable eect on legal prac-
tice that, in international tort cases such as infringement of intellectual prop-
erty rights, unlawful competition involving several countries and transfrontier
pollution the Dutch victim might be compelled to apply to a court in all the
countries involved. (emphasis added)

It is noteworthy that this ruling is of general application. The rst sen-


tence of this passage is nothing else than Article 3:296 Civil Code, provid-
ing the legal basis for injunctions sanctioning all kinds of legal obligations.
Also, the Hoge Raad itself included an explicit reference to transfrontier
pollution whereas the Interlas case itself solely relates to intellectual
property. Accordingly, there is no doubt that this ruling is not limited to
infringements of patents, trade marks and the like. From a private inter-
national point of view, the Interlas judgment should be classied as
dealing primarily with the law of remedies, albeit that a number of aspects
are closely connected with questions of international competence and
recognition and enforcement of foreign judgments.131 The availability of
transfrontier injunctions therefore is a matter for the law governing the
dispute the so-called lex causae. As said, in the cases under discussion

130 Supra, note 94.


131 See Polak (1995, No. 20).
174 Transboundary legal context

here, Dutch tort law applied. But this does not mean that Belgian law was
irrelevant. On the contrary, it follows from these two cases Sopar and
Interlas that enforcement of Belgian public environmental law by Dutch
public interest groups before the Dutch civil courts is a legal reality.
According to the Hoge Raad, an extraterritorial injunction should be
available in the light of increasing international contacts. It thus practised
a kind of international interpretation of the Civil Code: it construed the
term obligation within the meaning of Article 3:296 as encompassing
obligations under Dutch as well as foreign law.132 This means that the pro-
visions main rule, a right to a remedy to enforce obligations, has been inter-
nationalized. It would seem to follow that the provisions exception should
also be so construed. The word law, within the meaning of Article 3:296,
which possibly bars this right to a remedy, should then also be read as
including Dutch as well as foreign law. This view could be supported by the
Hoge Raads interpretation of the related Article 6:168 Civil Code in the
cited MDPA case. This provision reads:

1. The judge may reject an action to obtain an order prohibiting unlawful


conduct on the ground that such conduct should be tolerated for reasons of
important societal interests. The victim retains his right to reparation of damage
according to this title. [. . .]
3. The judge may as yet issue an order prohibiting the conduct where a con-
demnation to pay damages or to furnish security is not complied with. (empha-
sis added)133

In its cited decision in cassation the Dutch supreme court recognized that
the term important societal interests includes not only Dutch but also
foreign, in casu French, interests. This follows from the fact that this provi-
sion is just as much applicable in international as in purely domestic cases.
Accordingly, the Civil Code provides a system of checks and balances with
respect to international remedies. Or, as suggested by Polak, the Interlas
point of departure of worldwide extent of injunctions is balanced by a kind
of doctrine of sanctio non conveniens.134 Depending on the circumstances
of the case, the courts may reject a plaintis entitlement to an extraterritor-
ial injunction on a number of grounds such as important societal interests.
However, it should be noted that in principle the environmental
claimant will not encounter great diculties in securing a remedy when the
defendant has breached a statutory duty (leaving aside possible restrictions
of the sanctio non conveniens-type).

132 See also Polak (1995, No. 21).


133 English translation by Haanappel and Mackaay (1990, p. 301).
134 Polak (1995, No. 29).
Applying national liability law 175

7.3 US citizen suits: the Pakootas case135

We have already referred to Trail Smelter, the most famous case about trans-
boundary air pollution in public international law.136 The events leading up
to the international Tribunals rulings happened between 1925 and 1941.
Subsequently and before, hazardous materials including heavy metals such
as cadmium (forming slag) were also discharged into the Columbia River.
The slag travelled downstream from Canada into the United States, where it
accumulated over the years in the sediment of the river and Lake Roosevelt.
Leachate of the heavy metals from the deposited slag caused harm to the
environment and human health; there is ample evidence that the main source
of the pollution is Teck Comincos plant in Trail.137 Particularly aected are
the Indian tribes who live in the Colville and Spokane Reservations who use
these waters for shing and recreation.138 To date, no clean-up action has
been undertaken. In this section, we examine a civil liability follow-up of
Trail Smelter, which provides an important illustration of the use of so-
called citizen suits in a transboundary scenario.

7.3.1 Action by the US Environmental Protection Agency (EPA)


CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act), or Superfund, is the main federal US statute in the eld of
environmental liability.139 Among other things, it imposes strict, retrospec-
tive and joint and several liability on potentially responsible parties for
releases of hazardous substances, including on those who arranged the dis-
posal of the substances. It does not contain any regulatory standards such
as emission norms; instead it focuses on remediation and clean-up of haz-
ardous waste sites in the United States.140 The EPA is the public authority
empowered to implement and enforce the statute. On request of the
Colville Tribes, EPA conducted preliminary assessments of a particular
section of the Upper Columbia River; it concluded that it was a highly con-
taminated site eligible for inclusion on the National Priorities List. EPA
opened informal negotiations with the American subsidiary of Teck
Cominco so as to persuade it to conduct a Remedial Investigation and
Feasibility Study of the site.141 As no settlement could be reached, the EPA

135 This section is based on Betlem (2007).


136 Supra note 17.
137 Robinson-Dorn (2006, pp. 233321 at pp. 265267).
138 Pakootas 452 F.3rd at 1069.
139 42 U.S.C. 9601 et seq.
140 Robinson-Dorn (2006, p. 275).
141 Ibid. at p. 268.
176 Transboundary legal context

then issued a unilateral administrative Order for a Remedial/Feasibility


Study to Teck Cominco (Canada) under S. 9606 CERCLA. The addressee
refused to comply and enlisted the support of the Canadian government
arguing that CERCLA cannot be relied upon against a Canadian-based
company. The EPA has not enforced the order. However, members of the
Colville tribes took up the case as a matter of private enforcement pursuant
to CERCLAs citizen suit provision.

7.3.2 Judgment
For the rst time, US courts have applied CERCLA in a cross-border
context. In July 2006 the US Court of Appeals armed the key ndings of
the rst instance ruling by the District Court for the Eastern District of
Washington.142 However, as further examined below, some aspects of the
reasoning of the two courts dier; notably about the key issue of whether
CERCLA had been applied extraterritorially or not. The judgments on
appeal as well as in rst instance do not deal with any legal proceedings by
the EPA itself. Instead they concern a civil action by Mr Pakootas and other
members of the Colville tribes and the State of Washington (intervenor)
against Teck Cominco Metals Ltd., a Canadian company, before the com-
petent US district courts as designated by CERCLAs citizen suit provision
(S. 9659). The latter empowers any person [to] commence a civil action on
his own behalf . . . against any person [including the United States and
other public authorities] who is alleged to be in violation of any standard,
regulation, condition, requirement, or order which has become eective
pursuant to this chapter. Jurisdiction lies with the locally competent
federal District Court of the place where the violation occurred locus
delicti. The Court may issue injunctions and/or impose civil penalties.
Citizens must rst give 60 days notice to the violator as well as relevant
public authorities as a condition for admissibility of the action; the United
States and individual States have a right to intervene.
The key legal issues decided by the Court of Appeals in the Pakootas and
others civil action to enforce the EPA order are that: the river site from
which the leaching of the substances took place constitutes a facility and
a release within the meaning of CERCLA; the foreign corporation (oper-
ator) comes within the ambit of CERCLAs notions of any person and is
liable as arranger of the release; and no extraterritorial application of
CERCLA had occurred. The last conclusion is based on the analysis that
the site from which the substances leached was situated entirely within the

142 Judgment of 8 November 2004, not reported in F.Supp.2d, 2004 WL

2578982 (E.D.Wash.), 35 Envtl. L. Rep. 20 083; [2004] U.S. Dist.LEXIS 23041.


Applying national liability law 177

United States and that it did not matter that the substances had originated
in Canada and were transported by the river stream across the border.
Whether a suit would be characterized as domestic or extraterritorial is
determined not by where the operator had initially arranged for the emis-
sion of the slag but by the locus of the actual (or threatened) damaging
release of the heavy metals etc; the latter took place in the United States
not in Canada. The international jurisdiction of the US court over the
Canadian operator was based on the generally applicable venue rules for
international torts (personal jurisdiction found on place of the harmful
event).
We now focus on those aspects with wider implications for transbound-
ary environmental liability suits rather than questions of interpretation of
CERCLA. The latter is, however, intricately connected to key questions of
transnational litigation and may have proved ultimately decisive if the US
Supreme Court had decided to give a ruling.143 That is the ndings that the
Canadian-based company constitutes a liable party for having arranged the
disposal of hazardous substances as released from the site in the United
States (a facility within the meaning of CERCLA), because it oversaw the
emission of the slag into the Columbia River in Canada which subse-
quently ended up downstream in the United States. In essence, the Court
of Appeals judgment answers the question whether the citizen suit seeking
compliance with the EPAs Order is a domestic or an extraterritorial appli-
cation of CERCLA.144 Canadian-based Teck Cominco was held to be
liable under CERCLA.

7.3.3 Extraterritoriality or not?


The relevant statute, CERCLA, does not explicitly contemplate its appli-
cation to non-US based addressees. Is that an indication that the territor-
ial scope cannot reach beyond the US borders? Not necessarily since
normally neither regulatory statutes nor liability rules include provisions
on their spatial scope; generally speaking, it is a matter of interpretation of
the rules in a cross-border setting within the framework of the conict of
laws (notably jurisdiction and choice of law) and/or public international
law. Under US law, a presumption exists that legislation applies only within
the territorial borders of the United States; however, the presumption is
merely a canon of interpretation and the US legislator has the power to
extend the application of its laws beyond its borders if it intends to do so.

143 An application for certiorari by Teck Comienco was rejected by the Supreme

Court on 7 January 2008. See Order List 552 U.S., no. 061188, available at
www.supremecourtus.gov.
144 452 F.3rd at 1068.
178 Transboundary legal context

Congressional intent may be express or implied. More problematic are sit-


uations where addressees of the norm are based or acting outside the terri-
tory of the legislator and at the same time subject to the local laws;
particularly if this would result in conduct permissible there but prohibited
from abroad (a so-called true conict), the presumption against extrater-
ritoriality bites in order to prevent the conict of norms. However, the
picture is quite dierent where no such conict arises and eects of the
foreign conduct are having an impact in the forum State; normally,
sucient connecting factors would be present to justify the exercise of
jurisdiction over the foreign-based defendant.145
There is no bright line rule between a domestic and extraterritorial
application of CERCLA; indeed, the lower court had ruled the opposite
on this point, albeit that it did conclude there was a permissible extrater-
ritorial application. This is not surprising given the somewhat nebulous
nature of the concept of extraterritoriality and its rather less relevant
impact in the sphere of liability rules than in the context of regulatory
norms. To an extent, all cross-border disputes involving non-contractual
liability inevitably involve the application of one States tort rules to a
party based abroad; this in itself can never be disparaged as unacceptable
extraterritorial application of laws. Quite rightly, the Court of Appeals
underlines that no prescribing of conduct in Canada was in issue, i.e. reg-
ulating the discharges, but the assessment of the legal eects of them in
the United States where harm ensued; the nature of the legislation lia-
bility rather than regulation is determinative in this regard. CERCLA is
not a regulatory statute; it creates liability for remediation (costs) where
hazardous substances are released into the environment.146 Accordingly,
the Court of Appeals could convincingly hold that since the harm was
caused by the release of the substances through leachate and that all
of this occurred entirely on US territory, a domestic application of
CERCLA obtained so that there was no need to examine (rebuttal) of the
presumption against extraterritoriality. Teck Cominco is not caught in
any conict of norms with e.g. Canadian law obliging it to act dierently
from US law.147 Notably, no dierent emission limits are set as CERCLA
simply does not cover these; the company is only subject to Canadian reg-
ulatory law.148

145 District Courts judgment, supra note 142 at 510, with reference to leading
cases.
146 452 F.3rd at 10731074.
147 Even Canadian courts had ruled along these lines in cases about the enforce-
ment of US judgments in Canada, see Robinson-Dorn (1996, p. 295).
148 Robinson-Dorn (1996, p. 272).
Applying national liability law 179

CERCLA focuses on the release of substances with ensuing contami-


nation as the trigger for remediation action so that the relevant connect-
ing factor rightly is the place where that happens rather than the place
where the operator initially emitted the substances. There is a clear paral-
lel here with EU civil jurisdiction law under which place of the harmful
event has been construed, in situations where the impact of the damaging
actions are felt in a dierent State than where the operator had acted, to
cover both places with courts having jurisdiction149 (see further below).
Since the statute (CERCLA) had already made the choice between the two
possible places for triggering liability, the Court of Appeals decision is
convincing.

7.3.4 Would a European Pakootas be possible?


How does the ruling under review compare with current law in the EU?
Could a court in e.g. the Netherlands or England rule along the same lines
as their US counterparts in a case before it involving, say, a defendant from
Germany or Belgium? As in the United States, matters of substantive lia-
bility law (applied in a cross-border context) must be distinguished from
questions of private international law (conict of laws), notably jurisdic-
tion, as seen above. A straightforward transplant of the ruling cannot be
envisaged as CERCLA contains features notably the citizen suit provi-
sion which do not exist as such in EU law nor, presumably, in any of the
Member States domestic laws.150 However, there are sucient similarities
between CERCLA and both EC and some domestic laws to explore a pos-
sible European equivalent of Pakootas. For a start, the cited Environmental
Liability Directive, which required transposition into Member States laws
by 30 April 2007, and includes many features modelled on CERCLA, in
particular the assessment of damage to the environment.151 In summary,
the ELD establishes liability of operators for (the costs of) preventative and
remedial measures where the environment is (threatened to be) harmed.
The Directive obliges competent public authorities to compel operators to
take these measures or bear their costs when undertaken by the authorities
themselves. Members of the public must be able to request the authorities
to take action as well as to have access to judicial review of an authoritys

149 Case 21/76 Bier v Mines de Potasse dAlsace [1976] ECR 1735; [1977] 1

CMLR 284. See the discussion supra in section 3.3.


150 Most of them were covered in the following study prepared for the

Commission shortly before it adopted its Proposal for a Directive in 2002: Clarke,
Ch., Update Comparative Legal Study, available from the Commissions Website,
<http://europa.eu.int/comm/environment/liability/legalstudy.htm>.
151 Supra note 76.
180 Transboundary legal context

(planned) action or inaction, as the case may be. In section 5.3 above, we
have already seen that transnational enforcement under the ELD was
explicitly contemplated by the community legislature by referring to the
Brussels I Regulation.
A tort action would be a possibility either before the court of the domi-
cile of the defendant or before the court of the place where the environ-
mental damage occurred. In terms of jurisdiction, a European Pakootas is
entirely conceivable as under Article 5(3) of the Brussels I Regulation the
defendant may be sued before the courts of the place of the harmful event.
As noted above, and comparable to Pakootas, this includes the place where
the environmental damage arises. Unlike Pakootas, of course, a claim
under the ELD cannot be brought by private actors, only public authori-
ties can institute such proceedings.

7.3.5 Choice of law


If and when such a cost recovery action were to be instigated by an EU
Member State before a competent European court against an operator
from another EU Member State, the next question arising would then be
about choice of law: which domestic liability regime would govern the
dispute? This question did not arise in Pakootas because of the specic
cause of action involved: the CERCLA citizen suit seeking enforcement of
the EPAs Order and not a free standing private law action by victims of pol-
lution seeking damages and/or injunctive relief. As for the EU, choice of
law remains important despite the harmonization created by the ELD
because the Directive deliberately leaves certain matters to domestic law
whilst being minimum harmonization in any event, allowing the applica-
tion of more protective regimes. This even concerns, as said above, impor-
tant defences such as State of the Art and the permit defence.152
Remarkably, these choice of law questions would seem to remain of far
greater importance within the EU than in the Pakootas Canada/US
context. Suppose not CERCLA but the relevant legislation of British
Columbia had been in issue, no fundamental dierences would have arisen
as the latter is modelled on CERCLA; if anything, even fewer defences
would have been open to Teck Cominco as no permit defence is available
under British Columbia law.153 However, although available in the United
States to those operators regulated there, such US operators would not have
been better o than Teck Cominco as they would have been liable under
other US statues.154 Furthermore, no liability for environmental harm

152 See Art. 8(4) ELD.


153 Robinson-Dorn (1996, pp. 309312).
154 District Court judgment in Pakootas, supra note 142, at 14.
Applying national liability law 181

abroad would seem to exist under Canadian law when the operator is based
there, whereas, it would seem, nothing would prevent the Canadian author-
ities from applying their version of CERCLA to US polluters in the mirror
image scenario of harm in Canada caused by US operators. In fact, the
result of Pakootas-style litigation is that operators will be subject to the
strictest regime: a race to the top.155 That is to say that where courts on both
sides of the border take the same approach and apply their own liability
rules to foreign-based operators who have caused damage in the forum
State, a border can never shield operators from liability.
Similarly, in the EU, plaintis in future will be able to ensure that oper-
ators will be held to account under a regime that suits them the
claimants best. This follows from the Rome II Regulation which we have
already examined above (section 4.2).
Finally on the possible European Pakootas, it was noted above that
CERCLA style citizen suit provisions as such are not available in the EU.
This is denitely the case for the ELD as it is restricted to access to judicial
review of governmental action or failure to act. However, under some
Member States domestic laws NGOs have standing to bring civil suits,
including the use of tort law as a means of enforcing statutory obligations
such as in the Sopar case.156 Accordingly, some elements of the CERCLA
citizen suit are already present in at least one EU jurisdiction.

8 EFFECT OF A (FOREIGN) LICENCE

An interesting point which will often play a role in (transboundary) envi-


ronmental pollution cases is that pollution is de facto often covered under
a licence, that is to say that the discharges take place on the basis of a
permit. An important question that always arises in pollution cases is to
what extent the fact that a polluter follows the standards laid down in a
permit should have a justicatory eect in tort. Legal and economic doc-
trine is rather divided on that issue. Some hold that when a polluter could
take more care at relatively low costs than the level which is laid down in
the permit an exposure to liability should provide incentives for additional
preventive measures. Thus following regulatory standards or permit condi-
tion is merely considered a minimum. A complete compliance defence

155Robinson-Dorn (1996, pp. 315319).


156See also Wilde (2002, pp. 250 et seq.); De Sadeleer, Roller and Dross (2003),
Report for the European Commission, available from <http://ec.europa.eu/
environment/aarhus/pdf/accesstojustice_nal.pdf>.
182 Transboundary legal context

prevents any incentive to take precautions in access of the regulatory stan-


dard.157 Exposure to liability will thus give the potential polluter incentives
to take all preventive measures even if this requires doing more than just
following the conditions of a licence.158 Others have held to the contrary
that judges deciding a tort case should not be second guessing ecient
agency decisions.159 Bergkamp argues that the polluter should not pay
double. He holds that the polluter rst has to pay to follow the regulatory
conditions and next because he has to compensate the victim. He therefore
argues strongly in favour of a complete regulatory compliance defence.160
As a result also the solutions in national environmental liability in the
Member States vary considerably.161 This divergence will remain in place
even after the harmonization created by the Environmental Liability
Directive, because, as noted, this very issue has been left to domestic law. In
turn, this underlines the importance of choice of law in future trans-
boundary disputes within the EU; at least from 2009 the Community leg-
islature will have made some contribution to legal certainty in this eld
because the cited uniform choice of law regime of Rome II will then be in
force. Notwithstanding these national variations, there seems to be a
common core indicating that the mere fact that a tortfeasor follows regu-
latory standards or norms of a permit does not free him from liability in
tort. The legal policy behind this idea is, as indicated above, that the rights
of victims (of pollution) could be seriously limited if a rule were to be
applied that victims can no longer hold a polluter liable as long as the pol-
luter follows the emission standards of his permit. The latter solution
would only be acceptable if, at the moment that permit conditions were laid
down, the interests of victims had already been taken into account in the
balancing process. Indeed, if interests of victims were already incorporated
when setting standards in the permit, a subsequent nding of liability
would lead to an inecient second guessing of agency decisions by the judi-
ciary. However, the latter is, of course, more particularly a problem when
the licence is, as in the cases discussed in this chapter, not a licence awarded
in the victims State, but a foreign licence. On the one hand, one can expect
judges to be even more restrictive in accepting tort liability when foreign
polluters comply with their licence; on the other hand one can equally
understand that the interests of victims have usually not been taken into
account when standards were laid down in foreign permits. Theoretically,

157 See for example Burrows (1999, pp. 227242).


158 See Kohlstad, Ulen and Johnson (1990, pp. 888901).
159 See Rose-Ackerman (1991, pp. 5458).
160 Bergkamp (1998, pp. 200204).
161 For an overview see Faure and Grimeaud (2003, pp. 120 et seq.).
Applying national liability law 183

that would hence be a reason not to grant a justicatory eect to foreign


licences.162 In all of the Dutch cases we have discussed so far the justi-
catory eect of a permit of the foreign polluter played an important role.
In the salt mine case, the French polluter argued that he discharged accord-
ing to a French permit. The Hoge Raad replies:

In this, the court of appeal comes to the conclusion that the French discharges
license, to which MDPA adheres also as regards the regulations, does not have
the purport that all illegible interests are weighed to such an extent that the
license holder should be shielded from liability in tort. This judgment obviously
rests on the explanation of the license and the reservations made therein con-
cerning third-party rights especially the users of the water who suered
damage judicial discharges, such against the background of the nature and
purpose of the relevant French legislation. This judgment, which is properly rea-
soned, cannot be examined in appeal as to its correctness.

The Court of Appeals had established that the French licence to which
MDPA adhered explicitly mentioned that the permit was given without
aecting the rights of third parties. In this case, the conclusion was there-
fore relatively easy that the French licence did not aect the rights of the
victims in the Netherlands, since the permit explicitly mentioned this.
However, the Hoge Raad seems to suggest that when the foreign licence
would have weighed the relevant interest in an appropriate way compliance
with the permit could have shielded MDA from liability. In other words, in
this particular case the licence explicitly excluded a justicatory eect, but
the Hoge Raad seems to suggest that there still could be such an eect.163
The Hoge Raad decision therefore does not provide a nal answer.
The Court of Appeals of the Hague in the Sopar case is not particularly
resolute since it merely forces Sopar to comply with its own Belgian licence
of which the plainti-NGO had held that it violates European norms. The
Court of Appeals de facto only forces Sopar to comply with the conditions
of its Belgian permit and implicitly grants a justicatory eect to following
the conditions of this permit. Whether there could be liability in tort even
though the conditions of this permit were followed (had this been the case)
is not examined by the court. This is severly criticized in a case note to the
decision since neither under Belgian, nor under Dutch law is there such a
justicatory eect of following a permit.
The only decision which seems to be brave as far as the eect of a permit
is concerned is the one of the President of the District Court of Maastricht.

162 See on these issues further Betlem (1993, pp. 424430).


163 Betlem (1993, pp. 425427) and supra section 6.1.
184 Transboundary legal context

She establishes that Cockerill had a permit although it contained no norms


for the discharge of PAHs. Cockerill had indeed held that the fact that no
norms were contained in its permit, was an explicit choice of the adminis-
trative authority who wished to have no limitation on the amounts of PAHs
discharge. If that were the case then the subsequent decision of the District
Court of Maastricht to examine the lawfulness of the PAHs is brave in the
sense that this lawfulness is examined irrespective of the Belgian permit of
Cockerill. Precisely because she held that there were no precise norms con-
cerning the emission of PAHs, she was only prepared to accept liability of
Cockerill if the emissions exceeded every reasonable limit which was
according to the President not the case.
In sum, even though on paper following the conditions of a (foreign)
licence should not have any justicatory eect in a tort action, the Dutch
cases illustrate that (with the exception of the MDPA case) it is apparently
quite dicult to hold a foreign polluter liable as long as he complies with
the conditions of his permit. Only when the permit itself explicitly men-
tions that it does not aect the rights of third parties (like in the MDPA
case) have Dutch judges no diculty in accepting liability.164

9 RECOGNITION AND ENFORCEMENT

As we have already mentioned above,165 a key issue with transboundary pol-


lution cases is, of course, recognition and enforcement: it may be nice for the
plaintis in the three Dutch cases we presented to have won their case
against the foreign polluters. The question, of course, arises whether they
will also be capable to execute the judgment abroad. Also this was regulated
in the Brussels Convention on jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters of 1968 and today by
Council Regulation 44/2001 of 22 December 2000. The rules are relatively
straightforward: according to Article 33 of the Regulation a judgment given
in a Member State (for example the Netherlands) shall be recognized in the
other Member States without any special procedure being required. Article
34 provides that a judgment shall only exceptionally not be recognized, for
example when such a recognition would be manifestly contrary to public
policy in the Member State in which recognition is sought (Article 34(1)) or

164 See for more details the Second Report by the International Law

Associations Committee on Transnational Enforcement of International


Environmental Law for the August 2004 biannual Conference in Berlin, supra note
28, para. 3.5.
165 See supra section 3.
Applying national liability law 185

when the judgment was given in default of appearance (Article 34(2)). One
could still consider whether, for example, Belgium could have argued at the
time that the Dutch judgments were manifestly contrary to public policy
since a Dutch judge orders the reduction of discharges that they place
according to a Belgian permit. A shrewd attorney could try to argue that
recognizing the Dutch judgment would hence be manifestly contrary to
public policy in Belgium. That argument would, however, not be very strong
since also according to Belgian law (as we showed above) permits do not
have a justicatory eect in tort. Moreover, in the Sopar case the Belgian
company was precisely condemned to follow the conditions of the Belgian
licence, which can be hardly considered contrary to its public policy.
Another reason could be that some Member State might argue that the
plaintis were NGOs whereas in their country NGOs would not have stand-
ing. However, today standing of NGOs is almost generally recognized in all
Member States. Moreover, Article 36 provides that under no circumstances
may a foreign judgment be reviewed as to its substance.
Since recognition is in principle automatic, plaintis can move to the
enforcement of the judgment on the basis of Article 38: A judgment given
in a Member State and enforceable in that State shall be enforced in another
Member State when, on the application of any interested party, it has been
enforceable there. In that case the plainti will submit an application for
enforcement to the court or competent authority indicated in the list in
Annex II to the regulation. However, also as far as enforcement is con-
cerned, Article 45(2) holds that under no circumstances may the foreign
judgment be reviewed as to its substance.
An interesting feature in some of the Dutch cases we discussed was that
the court ordered the defendant to take specic measures and ordered a
penalty payment for the case of non-compliance. Also, that should not be
a problem from the perspective of recognition and enforcement. Article 49
of the regulation provides: A foreign judgment which orders a periodic
payment by way of a penalty shall be enforced in the Member State in
which enforcement is sought only if the amount of the payment has been
nally determined by the courts of the Member State of origin. Since, for
example in the Sopar case, the amount of the penalty payment was nally
determined by the Court of Appeals the penalty payment can also, in prin-
ciple, be enforced in Belgium.
In summary, the Brussels I Regulation provides sucient possibilities for
victims who obtained a successful judgment in the victims State to enforce
their judgment subsequently in the polluters State. Of course, problems
may still arise at the practical level. One could, for example, wonder how
the NGO Reinwater will have the possibility to verify whether defendant
Sopar will in the future actually comply with the conditions of the Belgian
186 Transboundary legal context

permit, but even there solutions could be worked out to overcome these
practical diculties.166

10 CONCLUSIONS

Traditionally lawyers primarily think of international law as the instrument


to solve transboundary pollution disputes. Instruments of international
law like conventions and multi-lateral environmental treaties may undoubt-
edly play an important role in that respect. However, the focus of our
chapter is a dierent one. We tried to show that sometimes also national
civil law can be applied to these transboundary pollution cases in such a
way that victims can successfully attempt to obtain an order forcing foreign
polluters to reduce their transboundary pollution.
The purpose of this chapter was to use a few examples mainly from the
Netherlands, but also from the United States to show that if particular con-
ditions are met victims can successfully use private law. We therefore tried
to provide an inventory of issues that potential victims may come across in
their attempt to use private law in the ght against transboundary pollution.
The example of the Netherlands shows that there are (of course depending
upon the willingness of the judiciary) ample possibilities for such a trans-
boundary application of national civil law. A crucial issue which will often
arise is whether victims have the right to bring a tort suit in their own
country. In legal practice this question may often be far more important
than e.g. the question whether a strict liability or a fault regime applies. We
showed that the case law of the European Court of Justice in the Bier case
allows victims to bring their suit not only in the place where the emissions
took place (often where the polluter is situated) but also in the place where
the damage occurs (usually the place where the victim resides). Moreover,
we equally showed that in some Member States (such as the Netherlands)
also in cases where harm is widespread and individual victims do not have
sucient interests to bring a liability claim, NGOs may have standing e.g.
to claim an injunction to stop the pollution on behalf of the environment.
As for questions of private international law (the conict of laws),
signicant progress has been made in Europe over the last four decades
or so in terms of removing obstacles to cross-border litigation against
polluters. As already mentioned, plaintis have the right to choose the

166 One could imagine a liaison between the NGO and the administrative

authorities in the polluters state whereby the administrative authorities would


cooperate to verify whether there is actual compliance with the permit.
Applying national liability law 187

forum they consider most appropriate in that, at their option, a case can be
brought before the court of the defendants domicile, a court at the place
where polluting acts took place (if dierent from the rst one), where the
environmental damage occurred (normally coinciding with the plaintis
home State) or, where a group of legal persons is concerned, at the place of
a branch of the parent company (again, insofar as that place is not over-
lapping with any of the other ones). From 2009, plaintis will also be able
to select the most appropriate liability regime as their most favourable law
under the Rome II Regulation, or agree on the applicable law with the
defendant. In any event, the considerable legal uncertainty about both
venue and applicable law, which deters victims from suing in the rst place
has been reduced to more manageable levels.
Under Dutch law, the courts have made important contributions by
adapting basic rules of tort law, the law of damages and civil procedure to
make them useful in a transboundary context. Injunctive relief has been
made available to ensure compliance with statutory obligations regardless
of the origin of the rules, domestic or foreign. In addition, defendants
based outside the Netherlands must comply with orders issued by the
Dutch courts both within and outwith the jurisdiction of the court issuing
the injunctions. Such orders are backed up by periodic penalty payments.
All these judgments are fully enforceable in any other EU Member State
under the Brussels I Regulation. In eect, Dutch law also recognizes an
equivalent form of US style citizen suits with which any interested person
is able to apply to a civil court to ensure compliance with relevant environ-
mental legislation in both a domestic and transfrontier setting. However,
whether the recent US Trail Smelter II litigation can be exactly exported to
the EU remains to be seen. That case illustrates, in our view, the importance
of the use of civil remedies in transboundary pollution cases. It demon-
strates how civil law cannot only be used to enforce statutory norms but
also administrative decisions ordering foreign defendants to take remedial
action. That is a valuable lesson from the United States.

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7. The joint governance of
transboundary river basins: some
observations on the role of law
Marjan Peeters1

1 INTRODUCTION

This chapter focuses on the transnational management of transboundary


rivers. One of the classic examples of a transboundary environmental
problem is that the upstream use of a river might harm the downstream
water quality in another state. The Netherlands, being the delta for four
main rivers, will naturally suer from this type of event.2 The Sandoz aair
of 1986, where a re at a chemical plant in Switzerland and the subsequent
leakage of the polluted rewater into the river caused a dead ecology of
the River Rhine, is an important example.3
Being a victim-state, the Netherlands traditionally has a particular inter-
est in developing an international approach with respect to the manage-
ment of transboundary river systems. The Dutch government therefore
engaged in discussions and political negotiations with upstream polluting
states. As a result of international political meetings, several transbound-
ary river commissions have been established. Those commissions, contain-
ing representative delegations from the river basin states, overarch the
national regional and local governments of the concerned states. The com-
missions have originally been established on a voluntary base, and are
subsequently formalized by means of a treaty. The development of the river

1 The author would like to thank Mr Mario Cerutti (Secretary of the

International Meuse Commission), Mr Ben van de Wetering (Secretary of the


International Rhine Commission) and Dr Anne Schulte-Wlwer-Leidig (Substitute
Secretary of the International Rhine Commission) for their expert advice. Also
thanks go to Mrs Anne Jenniskens LL.M, for her assistance to the research. Any
error falls under the responsibility of the author.
2 These four rivers are the Rhine, Scheldt, Meuse and Eems.
3 There was no sophisticated re alarm system, and no water basin in order to

catch rewater. See about this dramatic event Darell (1989, pp. 421472).

192
Joint governance of transboundary river basins 193

commissions is gradual and case by case. For each major river owing into
the Netherlands, a separate Treaty, establishing a specic river commission,
has been concluded. These rivers are the Meuse, the Rhine, the Scheldt and
the Eems, which is part of the Eems-Dollard estuary.
This chapter will discuss the establishment of two river commissions
established for two main rivers that ow into the Netherlands. These com-
missions are:

1. the International Meuse Commission (IMC, in Dutch: Internationale


Maascommissie), and
2. the International Commission for the Protection of the Rhine (ICPR,
in Dutch: Internationale Commissie ter bescherming van de Rijn).

First, section 2 oers a general discussion of the main reasons for


establishing a exible and dynamic approach with regard to river basin
management. Then, as an illustrative example, the two mentioned river
commissions will be discussed in section 3. Section 4 discusses some legal
developments at international and European level with regard to trans-
boundary water management. Specic attention will go to the Framework
Water Directive, which was adopted by the European Union (EU) in
2000. This directive aims at a good water status to be reached by 2015. The
directive prescribes a river basin management approach, also with regard
to international rivers. Subsequently, this directive obliges the EU
Member States to coordinate international river basin management plans.
The already established river commissions can in this regard play an
important role. This is especially true for the Meuse Commission, which
was established after the adoption of the Framework Water Directive, and
which has been attributed the task to coordinate the obligations arising
from the European Water Framework Directive. Section 5 contains some
concluding observations on the role that law might play within the major
trend to manage transboundary river basins in quite a exible and
integrated way.

2 WATER POLLUTION AND THE BROAD CONCEPT


OF WATER MANAGEMENT

2.1 From a single issue oriented approach to a holistic approach

Before starting to discuss the river commissions, it is important to recognize


the evolution of the basic concept of transboundary water management,
which evolved from a single issue approach towards a holistic view. This
194 Transboundary legal context

holistic approach expresses the attempt to balance the dierent interests


with regard to a water area in an integrated way. It is therefore that such
policies focus on the whole river basin instead of the sole river alone: the
river basin means the area of land from which all surface run-o ows
through a sequence of streams, rivers and, possibly, lakes into the sea at a
single river mouth, estuary or delta.4
Originally, the prevention of water pollution or the share of the water
ow were core but mainly single issue objectives. However, following the
lines of the gradual development of national environmental policies, an
integrated concept of water management has emerged. It is now broadly
accepted that water management should focus on the relationships between
water quantity, water use, water quality and ecology. This is based on a
broad river basin concept, thereby taking account of the hydrographic
system of the river, and the several functions of and threats towards the
river. The World Wildlife Fund recently stressed the multifaceted threats
towards rivers, like too much and thus harmful water extraction, the estab-
lishment of damaging constructions like dams and canalization, and the
increasing emergence of invasive species. It is thus not only pollution that
forms a threat to rivers.
It is now widely recognized that the complex and interconnected nature
of water systems demands that its management be holistic, based on a bal-
anced consideration of the needs of people and the environment.5 An inte-
grated river basin management is needed in order to deal with the many
dierent threats, and to manage the multipurpose function of the rivers,
being food supply through sheries, water supply for consumption, indus-
trial, energy generation and agricultural use, transport, tourism, and, not
least, providing ecological values.6
Moreover, besides the concept of integrated water management, the
concept of integrated environmental protection has emerged. The adoption
of the Integrated Pollution and Prevention Control Directive in the EU
illustrates this approach.7 This directive obliges Member States to take into
account the environment as a whole, ensuring a high level of protection,
when considering the issuance of an environmental permit to an industrial

4 See the denition in Directive 2000/60/EC of the European Parliament and of

the Council of 23 October 2000 establishing a framework for Community action in


the eld of water policy, Art. 2 (OJ 22.12.2000, L327).
5 Chapter 18(36) of the Rio Conference Agenda 1992 http://www.un.org/

esa/sustdev/documents/agenda21/english/agenda21chapter 18.htm.
6 WWF (2007).
7 Council Directive 96/61/EC of 24 September 1996 concerning integrated pol-

lution prevention and control (as amended), OJ L257/26.


Joint governance of transboundary river basins 195

installation. When several permits are issued for a single installation, the
administrative authorities need to endorse a full coordination in order to
ensure an integrated approach. It is obvious that integrated water manage-
ment and integrated environmental management are closely linked.
However, it might even be expected that procedural and substantive prob-
lems of coordinated decision-making might occur, in the case of conicting
interests of water and environmental management.
From a legal perspective, one of the basic starting points is to control the
administration, in order to prevent or, when necessary, correct a possible
abuse of administrative power. From a command and control perspective,
the competences for the administrative authorities should then be described
in quite some detail. However, the necessity for integrated decision-making
means by nature that some discretion should be left to the administrative
authorities, so that they can conduct a comprehensive assessment of the
necessary approach towards river management, and, moreover, to decide
what should be done when there is a conict of interests. So, by nature, the
need for an integrated approach already means that discretion should be
left to administrative authorities. Of course, these authorities should be
held accountable for the decisions they make. However, it is by nature
almost impossible to prescribe concrete and detailed norms along which
decisions should be made. Indeed, for integrated environmental and water
management decision-making, administrative discretion is an unavoidable
characteristic.

2.2 The dependent position of the victim state: how to approach the
pollutant state?

As formulated in the 1990 Helsinki rules of the International Law


Association, each basin state is entitled, within its territory, to a reasonable
and equitable share in the benecial uses of the waters of an international
river basin.8 The waters of the basin are considered as a shared resource;
conicting claims of states with regard to the basin question how utilization
can be shared in an equitable way. However, the victim state is in the unfor-
tunate position that it is in principle dependent on the willingness of the pol-
luting state for protecting and improving the water quality. As far as it would
be possible to approach an international court or a tribunal, states are very
reluctant to do so. Hence, the major trend is that a victim state tries to

8 International Law Commission, Report of the International Law Commission

on the Work of its Forty-Second Session, 1 May20 July, 1990: Art. 4. See Kiss and
Shelton (2000, p. 400).
196 Transboundary legal context

negotiate with the polluting state or polluting states. In this respect, the
victim state can even try to link its unfortunate position with another power-
ful position. In the context of the Meuse, tactical issue-linkage has clearly
occurred, where the Dutch government linked the dependent position of
Belgium with respect to the navigation of the Scheldt with its dependent
position with respect to the quality of the Meuse water.9 There was even a
linkage with a train rail project, facilitating a fast connection between Paris
and Amsterdam. However, this method of issue linkage can be a quite cum-
bersome, untransparent and unpredictable process. Specically in the case
of the Netherlands trying to apply issue-linkage for the Scheldt and the
Meuse, an internal conict of interests within Belgium and dierent points
of view and interests of the Wallonian and Flemish region hindered the
success of issue-linkage.10 However, the issue-linkage approach was to some
extent successful: after there was a political agreement between Belgium and
the Netherlands about the train rail works, the several conventions regard-
ing the Scheldt and the Meuse could be concluded.11
In summary, strategic issue-linkage seems attractive because it can lead
to package deals that are benecial to all the parties concerned. How-
ever, this bargaining approach can still be quite cumbersome and even
ineective, and, moreover, hard to understand and to control from the
outset.12 Even more important, being also a single-issue approach, it can as
such back up negotiations between river states, but it doesnt oer an holis-
tic solution for approaching a river basin.
Another important incentive for stimulating action by a polluting state
could be the transnational litigation by NGOs or victims. It is a well-known
feature of international environmental law that states have a preference for
treaties where the states do not as such take substantive obligations, but
where the obligations for polluters are dened.13 This would facilitate the
victims, suering from poor water quality, to approach the polluters
directly. For instance, the authority of the Rotterdam Port put much eort

9 Meijerink (1999).
10 See about this issue linkage also Mostert (2003, pp. 112, p. 4).
11 Meijerink (1999, p. 180). Meijerink states that the decision making on the

Scheldt cannot be understood without an analysis of decision making on the Meuse


(and vice versa), p. 65. In fact, the core dilemma is the competition between the
ports of Antwerp and Rotterdam, p. 113.
12 In addition, it does not make sense to uphold linkage proposals that would

not benet the other party or to which the other party never will agree, see Meijerink
(1999, pp. 145 and 161), about (wrongly) linking the Scheldt and the Meuse by the
Dutch government. However, the linkage with the HSL (train rail) seemed to be suc-
cessful, p. 180.
13 Boyle (2005, pp. 326).
Joint governance of transboundary river basins 197

on liability claims in order to obtain compensation for the cost of remov-


ing polluted dredged materials. This removal was necessary in order to keep
the port and river navigable. Moreover, the liability claim from Dutch
market gardeners with regard to the pollution of the Rhine by chlorides,
emitted by the Mines de Potasse d Alsace SA in France, is an appealing
example.14 This is a leading case in the eld of transboundary water pollu-
tion, proving the possible success of such a claim. However, dispute settle-
ment procedures are time-consuming and costly, and, moreover,
single-issued, while they only concern one specic damage. Therefore, there
is a search for a more comprehensive and less costly approach.
In the case of the transboundary rivers coming into the Netherlands,
external pressure came also from environmental NGOs starting liability
procedures against polluters abroad. In summary, transnational litigation
already formed quite an impulse for the international negotiations and the
readiness of the pollutant states to take up responsibilities.15 This speeded
up the negotiators in accepting a common approach.16
Also national political developments may strongly inuence the inter-
national negotiations. The fact that in the Netherlands the Minister of
Foreign aairs was sent home in 1927 by parliament because he had not
served suciently the Dutch interests with the water ow of the Meuse,
made the Dutch government reluctant to agree to a convention that would
not be meaningful according to Parliament.17
Even when a victim state would approach a court, contesting the illegal
behavior of a polluting state, it can be questioned whether this would really
solve the issue at stake. The rise of non-compliance procedures in inter-
national environmental treaties illustrates that more condence is given to
non-confrontational mechanisms instead of adversial procedures. Indeed,
a compliance committee can suggest solutions, taking a broader approach
than only the strict legal approach that non-compliance should be sanc-
tioned. From this respect, the non-compliance mechanisms are expected to
be even more eective than traditional litigation, by keeping the concerned
parties on track instead of leaving the regime.
Romano has for instance made a detailed analysis of a dispute concern-
ing the River Meuse and the extent to which a procedure brought before

14 The Supreme Court of the Netherlands, 23 September 1988, reproduced in

(1989) Tijdschrift voor Milieuaansprakelijkheid (Environmental Liability


Quarterly) 1, pp. 1518.
15 Meijerink (1999, p. 137).
16 It remains to be seen to what extent the environmental liability directive will

have a meaningful contribution towards transboundary protection of water quality.


17 Meijerink (1999, p. 145).
198 Transboundary legal context

the Permanent Court of International Justice solved the case.18 The under-
lying dispute between Belgium and the Netherlands concerned the share of
the water ow of the Meuse. The Netherlands based their argument on a
Treaty of 1836. The Court took a traditional legal approach and did not
(or, in other words, was not expected to) eliminate the underlying reason for
the dispute. Although both parties were aware that the Treaty of 1836 no
longer met the requirements of modern industrialization, they could not
agree on a new regime. As such, the court procedure, reecting on the out-
dated Treaty, could not solve the case. This illustrates that binding norms
(and traditional dispute settlement procedures) are not always able to solve
disputes with regard to transboundary water management; the only
way out then is that States undertake a meaningful co-operation. The
same legalistic event happened, according to Romano, with respect to
the Gabckovo-Nagymaros dispute about the River Danube. There the
International Court of Justice could not really solve the dispute as such,
but found, inter alia, that the two parties, Hungary and Slovakia, were
under an obligation to negotiate further on a solution of the dispute.

2.3 Regime approach

A regime approach facilitates a procedural approach based on principles,


information exchange and cooperation. Given the fact that there is no
global supra institution, and given the fact that river basin states would not
be ready to give up part of their sovereignty, the regime approach is a way
in which the respective sovereign states oblige themselves in a quite proce-
dural Treaty to discuss on a regular basis the problems and approaches for
the transboundary environmental problem, thereby trying to nd the best
(possible) suitable solution.19 The regime approach focuses on cooperation
among parties, and facilitates parties to adjust the norms and standards to
scientic and technological developments, and to changing and complex
political and economic circumstances. The regime enhances trust building,
the recognition of each others problems and interests, and to include new
insights and new circumstances, like for instance the possible consequences
of climate change. The continuous communication in a regime setting is
even more important to avoid good-faith disagreements: such disagree-
ments more readily emerge when parties fail to communicate with each
other. Also, a possible contradiction of norms can probably more easily be

18 Romano (2000, pp. 233245).


19 This regime, or, in other words, managerial approach has been discussed by
Chayes and Chayes (1995).
Joint governance of transboundary river basins 199

avoided in a dynamic and exible regime setting.20 In the case of a man-


agerial approach, non-compliance will be primarily seen as something to
be communicated between the parties in order to try to nd a solution.
Indeed, non-compliance will not in principle be punished by sanctions, but
will be addressed with an examination of the possible ways for avoiding
non-compliance in the future.
The regime approach, or, in other words, a managerial approach,
includes a learning process, where a change of perceptions of actors, and
therefore modications of their objectives and strategies might occur.21
Moreover, the nature of transboundary environmental problems often
makes it dicult or even impossible to dene the exact content of obliga-
tions.22 The regime approach thus seems well suited to the management of
transboundary environmental problems, and, specically, for the manage-
ment of transboundary river basins.
Another advantage of the regime approach is that it is better able to
involve all the stakeholders in the water management issues.23 Of course, it
can be questioned to what extent this participatory approach should be
undertaken, the costs of such a modern and time-consuming approach
might exceed its benets.
Nevertheless, it is still worthwhile to consider the importance of the add-
itional or supportive role of a court procedure, specically with regard to
backing-up the managerial approach. At least the courts would be compe-
tent to judge on strict legal but still important liability questions. Moreover,
the awareness that a party can go to court could already give an incentive
to engage into regime building and regime implementation, although it is
not yet clear how strong this incentive might be. Transnational litigation
between private victims and polluters will probably occur more frequently
than a state suing another state. In this sense, civil litigation provides at least
to some extent also an incentive for concluding voluntary agreements.
Moreover, inter-state liability court disputes seem unattractive as long as
it is still not clear to what extent the principle of equitable utilization of a
transboundary water basin would be enforceable at the International Court
of Justice.24
Sadly, the strongest incentive for improving international negotiations is
when a disaster happens. Indeed, it was just after the Sandoz aair that the

20 Nollkaemper (1993, p. 307).


21 Meijerink (1999, p. 43) and, more generally about the managerial approach,
Chayes and Chayes (1995).
22 Kiss and Shelton (2000, p. 37).
23 See for instance the practical guide from HarmoniCOP (2005).
24 Kiss and Shelton (2000, pp. 402403).
200 Transboundary legal context

notication procedure in case of disasters was improved among the Rhine


states. It had appeared that the generally formulated notication obligation
did not work. In terms of Nollkaemper, there was too much discretion for
the states in complying with the obligation to notify. After the accident, the
Rhine states agreed on specications for the thresholds for notication,
leaving not much room for discretion for the states.25 Moreover, as a result
of the Sandoz disaster, important political agreements were concluded,
which were quite eective.26 Also, the ooding of the Meuse in 1993 and
1995 stimulated further negotiations and agreements on the management
of this river.

2.4 The diculties surrounding standard setting

It is not easy to develop adequate and fair rules for sharing a trans-
boundary river basin.27 Suppose that a common quality standard would
be taken for the whole river, this would then mean that the upstream state
is in the fortunate position to ll up the norm, leaving the downstream
state in the poor situation not being able to add some substance to the
water.
On the other hand, general emission standards for industrial processes
could also lead to the unfortunate result that the downstream state suers
from an already polluted river, especially when in the upstream state many
industries already discharge lawfully meaning, in compliance with the
emission standard.
Also the designation of a water area, for instance as a water drinking
reservoir, a bathing area, or respectively a nature conservation area,
remains quite meaningless when the upstream state would not be ready to
ensure that the out-going water quality would meet the qualications of
these specic functions. This does not mean that the use of water quality
standards and emission standards would not be possible at all, but it means
that the diculty of the process towards developing such standards which
then in fact form a translation of an equitable share of a water basin
should not be underestimated. In addition, it should be recalled that not
only point sources, but also non-point sources play an important role with
regard to water protection. These non-point sources need another regula-
tory approach compared to point-sources, which can easily be addressed
through a permit system.

25 Nollkaemper (1993, pp. 173174).


26 Dekker and De Villeneuve (1995, pp. 267278, pp. 272273).
27 Nollkaemper (1993, pp. 103107).
Joint governance of transboundary river basins 201

Because of these diculties with traditional standard-setting, an open


mind to alternative regulatory approaches is recommended. For instance,
market-based regulatory tools leave more discretion to society, then only
being steered with pricing mechanisms instead of with command and
control standards. Although the design of such market-based instruments
is a meticulous and sensitive task, not at least with regard to the monitor-
ing and enforcement schemes, the exibility for polluters that is incorpor-
ated in such schemes makes them attractive tools, and they should at least
deserve further consideration.28
Another characteristic that complicates the development of classical
legal norms is the uncertainty surrounding environmental policies. It is
often not scientically clear what kind of specic risks or damage will be
caused by specic substances. This makes it hard to specify, at any given
time, the exact and concrete content of a norm. The uncertainty that sur-
rounds environmental decision-making urges for regular updates of
adopted standards, especially when new evidence becomes available. This
means that the standard-setting procedures should not be too rigid, in
order to being able to incorporate new insights. On the other hand, indus-
tries and also environmental organizations and citizens ask for legal cer-
tainty. Here, a balance must be struck between, on the one hand,
uncertainty with regard to the potential risks, and on the other hand the
need for society, especially industries, to be able to trust set standards in
order to conduct certain investments. However, the avoidance of severe
environmental and health risks (and, consequently, the possible need for
stricter standards after new science becomes available) is to be seen as a
higher priority than the legal certainty facilitating commercial invest-
ments.

2.5 A less legalistic approach seems (at least in some cases) more
benecial

There are ample indications that non-binding rules can have a signicant
impact on state behaviour. An illustrative example is the Rhine Action
Programme of 1987. In the International Rhine Commission, the use of
recommendations to which states commit themselves has been considered
to be more successful than the troublesome attempts to develop legally
binding international rules.29 It is also suggested that states would
be ready to take much stronger commitments in non-legal binding

28 See for instance the rather new idea of Payments for Environmental Services

in order to support environmental conservation: Greibner (2006, pp. 1112).


29 Nollkaemper (1993, pp. 210, 225).
202 Transboundary legal context

rules.30 An advantage of the non-binding character is that the standard-


setting is much more exible, and could follow a speedier track (as legal
binding rules need national ratication).31 The amendment of binding
rules, especially when they need to be ratied by the riparian states, is
indeed a quite heavy procedure. However, the disadvantage of this infor-
mal approach is also its exibility, only binding rules give legal certainty.32
In a comparative study of the River Rhine and the Great Lakes it was con-
cluded that a more consensual approach with regard to the River Rhine
yielded greater benets regarding water quality protection than the con-
frontational, adversial approach as conducted in the United States. This also
contributes to the assumption that a (too) large emphasis on legal procedures
and claims does not benet relationships between concerned parties.33 It is
illustrative that the Commission for the Great Lakes had even more legal
powers than the Rhine Commission, like a veto right with regard to certain
activities. The existence of such legal powers, and the existence of a regime
where large possibilities exist for concerned parties, like environmental NGOs
and industrial associations to contest regulations as is the case in the United
States does not mean that the policy with regard to the river will indeed be
the most eective one. In the specic case of the United States Clean Water
Act, 90 per cent of the euent limit standards have been challenged in court.
However, such court cases are not conducive for a coming together of minds
of the concerned parties, they even deepened the rifts among them.34 Despite
ample opportunities for suing each other, and, moreover, even more stringent
command and control standards compared to Europe, the US approach
seems to have resulted in less eective protection compared to the consensual
and corporatism-based European approach.35 By focusing too much on envi-
ronmental protection, the International Commission for the Great Lakes
missed a chance to bring (the interests of) business rms, environmental orga-
nizations and governments closer together.36

30 For instance according to Dekker and De Villeneuve (1995, p. 273), referring

to the political agreements after the Sandoz aair.


31 Kiss and Shelton (2000, p. 51); Nollkaemper (1993, p. 230).
32 Nollkaemper (1993, p. 237).
33 Verweij (2000, pp. 10071054). The Rhine companies made extensive invest-

ments far beyond the applicable legal norms.


34 Verweij (2000, pp. 10311032).
35 Verweij also draws attention to the dierent nancial structures for com-

panies, to the exibility at the implementation level, and to the dierent state struc-
tures (the presidential regime versus parliamentary regimes).
36 Verweij (2000, pp. 10431044). See also Mostert (2003, p. 5), who after study-

ing quite a number of cases concludes that having good relations was the most
common and the most powerful strategy for reaching commitment.
Joint governance of transboundary river basins 203

The Dutch government has preferred to protect its interests by diplo-


matic means and treaty negotiation. The Netherlands decided not to go to
court when there was a clear case for doing so.37
Also, in the case of the Meuse, there was a dislike of confrontational pro-
cedures for approaching the polluting state; the tactical linkage-issue policy
was much preferred. Such cooperation can indeed yield benets, states con-
tinue to communicate with each other and are thereby able to achieve
winwin situations, even in issue linkages formats.

3 A FOCUS ON TWO INTERNATIONAL RIVER


COMMISSIONS

3.1 The International Meuse Commission

3.1.1 Introduction
The Meuse (Maas in Dutch) originates in France and ows through Belgium
and the Netherlands towards the North Sea. Its full length is 950 kilometres.
Parts of Luxembourg and Germany belong to the Meuse river basin. Brussels
and Antwerp use Meuse water for drinking water purposes.38
The Meuse, being a rain river, has a changeable ow and both oods and
shortages of water are serious problems. In addition, water and sediment
pollution, threatening drinking water, are a major concern. Furthermore,
the river is partly navigable, and some parts of the river basin have been des-
ignated as nature conservation areas.39
The negotiations preceding the actual Meuse Treaty (Maas Verdrag),
concluded in 2002, were quite cumbersome. The issue linkages with the
Scheldt made the dossier very complex and politically sensitive.

3.1.2 The Treaty


The Meuse Treaty entered into force on 1 December 2006.40 It has been
signed and ratied by Belgium, France, Germany, Luxembourg, the

37Nollkaemper (1993, p. 238).


38Meijerink (1999, p. 65).
39 Internationale Maascommissie (2005).
40 Its predecessor, the Treaty concerning the protection of the River Meuse of

26 April 1994, which according to the information of the secretariat of the Meuse
Commission entered into force on 1 April 2003, established the Meuse Commission,
with the following members: France, The Netherlands, the Walloon District, the
Flemish District and the Brussels District. Observers to that Treaty were Germany,
Luxembourg and the Belgian Federal Authority. The Dutch ocial Treaty Journal
204 Transboundary legal context

Flemish, Walloon and Brussels Region and the Netherlands. The Treaty
aims at a sustainable and integrated water management of the whole inter-
national river basin of the Meuse, taking into account the multiple goals of
the river.41 Water quality, but also ecology, and the prevention of ooding
and drought belong to the broadly dened goal of the Treaty.
The Treaty takes as a fundamental starting point some environmental
principles, like the precautionary principle and the polluter pays princi-
ple.42 It states that the parties should be guided by these principles, as being
interpreted in view of European law.
The Treaty rules that the contracting parties shall take the necessary mea-
sures to execute the Treaty, including the advice, recommendations and deci-
sions of the Commission, and that they shall inform each other thereof.43
This seems a far-reaching provision, and it is interesting to examine whether
the decision-making by the Commission, when laid down in an advice, rec-
ommendation or decision, will indeed have a binding eect, now it has been
stipulated that the contracting parties should take measures to implement
the several types of Commission decision. However, the explanation of the
Dutch government with regard to Article 3 is remarkably reluctant with
regard to the binding eect. When submitting the Treaty to the Dutch
Parliament, the government rst stated that the common starting points as
being mentioned in Article 3 should be respected by the contracting
parties.44 The obligation of Article 3 from the Meuse Treaty, meaning that
the contracting parties should take measures in order to implement the
advice, recommendations and decisions of the Commission is unfortunately
not specically discussed in the explanatory memorandum to the ratifying
act. However, in the context of the dispute settlement provision, the Dutch
government argues that the Treaty does not contain direct result-oriented
obligations.45 Moreover, the Dutch government explicitly states that the
decisions adopted by the Commission have no legal binding eect.46 Indeed,
one can wonder whether an advice or recommendation which is something

(Tractatenblad) however has announced that this Meuse Treaty didnt enter into
force, but this seems to be an administrative misunderstanding: Tractatenblad
(2006), 242, p. 2.
41 Art. 2 Meuse Treaty.
42 Art. 3 Meuse Treaty.
43 Art. 3(2)(a) Meuse Treaty.
44 Second Chamber of the House of Representatives of the Netherlands,

20042005, 29 885, A, and nr. 1, p. 2.


45 Second Chamber of the House of Representatives of the Netherlands,

20042005, 29 885, A and nr. 1, p. 4.


46 Second Chamber of the House of Representatives of the Netherlands,

20042005, 29 885, A and nr. 1, p. 5.


Joint governance of transboundary river basins 205

dierent from a decision, including a standard or a concrete norm can be


qualied as something that should be exactly implemented by the contract-
ing parties. Nevertheless, Article 3 of the Meuse Treaty expects the con-
tracting parties to take the measures necessary for the implementation of
the Treaty, and of the opinions, recommendations or decisions of the
Commission. We conclude here by stating that the legal binding eect of
acts of the Commission is not out of the question.
Furthermore, the contracting parties have adopted other, more detailed
formulated obligations. A quite concrete norm is the duty to inform other
parties in case of accidental polluting and ooding events. In addition,
there is an obligation to prevent, as much as possible, the downstream
movement of polluted sludge.
The Meuse Treaty contains the institutional conditions for the
International Meuse Commission.47 The Treaty provides a framework for
the Commission to develop advice and recommendations with regard to
the management of the Meuse river basin by the river basin states. In doing
so, it aims at a better and synergetic implementation of the European
Framework Water Directive (which will be discussed in section 4) and
other water management issues, like the prevention of oods, by the Treaty
parties. The Commission is the central forum through which the Parties
can try to reach consensus about the river basin management. The Treaty
explicitly rules that Parties are allowed to take individually or jointly with
other parties more stringent measures than those laid down by the
Treaty.48
The Parties agreed to execute the Treaty from the date of signing,
specically with regard to the establishment of the Commission.49
In the Treaty negotiations, the Dutch ocials, representing the
Netherlands as a victim state, insisted on some substantive goals in the
Convention. Now this has not been done, the problem of negotiation has
been shifted to the Commission.50
The Treaty as such does not entail nancial consequences for the Treaty
parties, except the costs for the Commission.
Specically for the water ow of the Meuse, there is a bilateral agree-
ment between the Netherlands and the Flemish Region. This Treaty was

47 The website of the International Meuse Commission is http://www.meuse-

maas.be; it provides information in three languages (Dutch, French and German),


which are the languages of the contracting parties.
48 Art. 3(3) Meuse Treaty.
49 Announcement of the Dutch government to Dutch Parliament, Staten-

Generaal, 20042005, 29 885, A and nr. 1, p. 2.


50 Meijerink (1999, p. 135).
206 Transboundary legal context

concluded on 17 January 1995 and entered into force on 1 July 1996.51 It


contains concrete agreements on the water ow quantity of the river. In
addition, it is interesting to see that attention is paid to research plans, in
which the ecological concerns of the river need to be taken into account.
It furthermore contains the agreement that the ow capacity of the river
(specically, the capacity of the river-bed and the river-banks) will only be
amended with consent of the other party. In case of a disagreement, the
conict can be submitted to a tribunal on the request of one party. No
specic references are made to water quality issues. In the past, the water-
ow of the river was disputed between the Netherlands and Belgium,
which resulted in a judgment of the Permanent Court of International
Justice in 1937.52
Although there is an emerging idea that a river basin should be
approached in a holistic way, we can still see that, on the one hand, the ow
capacity, and, on the other hand, the water quality concerns are dealt with
in separate treaties with dierent contracting parties. In this respect, we see
the emergence of a multi-level approach: rst, there is an overarching
Meuse Treaty, and, secondly, the specic water ow concerns among
Belgium and the Netherlands are taken up in a bilateral treaty.

3.1.3 The Commission


The Commission consists of delegations from the contracting parties. Each
contracting party shall appoint its delegates, including a head of the dele-
gation. The chair of the Commission shall be held by each contracting
party in turn for a period to be specied in the rules of procedure for the
Commission. The Commission meets at least once a year. It shall also meet
at the request of at least two delegations.
Several advisory and practical tasks are assigned to the Commission. Its
main task is to coordinate the obligations arising from the European Water
Framework Directive. The Treaty explicitly rules that the multilateral coor-
dination of the implementation of measures as required by the Water
Framework Directive will be done by the Commission. In particular, the
Commission should serve as the forum in which the transboundary river
basin management plan will be developed. In this respect, it is important
that the contracting parties have agreed to co-operate in order to develop a
single river basin management plan.53 Furthermore, the Treaty explicates

51 (1995) Tractatenblad 50 (Verdrag tussen het Koninkrijk der Nederlanden en

het Vlaams gewest inzake de afvoer van het water van de Maas); the Treaty entered
into force on 1 July 1996.
52 Romano (2000, pp. 233244); Bouman (1996, pp. 161167).
53 Art. 2 Meuse Treaty.
Joint governance of transboundary river basins 207

several duties following from the Framework Water Directive, such as mon-
itoring obligations, which should be coordinated by the Commission to
advise and to recommend Treaty parties about the prevention of ooding,
thereby taking into account many concerns like nature conservation, the
environment, spatial planning, forest management, agriculture and urban-
ization. Furthermore, the Commissions needs to coordinate alarm systems
with regard to ooding and to advise and to recommend Treaty parties
about accidental water pollution.
The decisions by the Committee (recommendations) require voting by
unanimity, having a majority of the members present.54 Article 3 of the
Meuse Treaty contains an extensive list of specic tasks, which are mainly
operational and policy-oriented. The most concrete and practical obliga-
tion for the Commission is to ensure the necessary transposition of infor-
mation with regard to the prevention and mitigation of calamities.55 The
managerial approach is clearly emphasized where the Commission should
adopt an Action Program that contributes to the main goal of the Treaty
(sustainable and integrated water management).56 Also, the obligation that
the Commission should develop through coordination a homogeneous
water quality monitoring system is an example of the managerial and often
quite practical approach taken by the Treaty parties.57 Here, the Treaty
links with some obligations that Member States should implement accord-
ing to the Water Framework Treaty, and instructs the Commission to coor-
dinate such activities.58
Because the contracting parties should, according to Art. 3 of the Treaty,
take the necessary measures to implement the advice, recommendations
and decisions of the Commission, it is interesting to examine which specic
topics may be subject to such decision-making. Indeed, the Meuse Treaty
refers to some selected issues for which the Commission may adopt advice
and recommendations. For instance, the Commission is entitled to adopt
advice and recommendations with regard to sh stocks, and sh migra-
tion.59 However, with regard to the water quality policies of the Treaty
parties, the Treaty stipulates that the Commission may (only) exchange
information and opinions.60 Furthermore, the Treaty contains a general
provision that the Commission may adopt advice and recommendations in

54 Art. 5(4) Meuse Treaty.


55 Art. 2(d) Meuse Treaty.
56 Art. 4(4)(f) Meuse Treaty.
57 Art. 4(4)(e) Meuse Treaty.
58 Arts. 5, 8, 11 of the Water Framework Directive.
59 Art. 4(4)(d) Meuse Treaty.
60 Art. 4(4)(g) Meuse Treaty.
208 Transboundary legal context

order to execute the Treaty.61 One could argue that this implies a quite
general competence. However, one can also argue that the specic list of
Commission tasks, thereby referring to, on the one hand, topics for which
(only) information may be exchanged and, on the other hand, to topics for
which advice and recommendations may be adopted, is a decisive factor for
interpreting the exact competence of the Commission to adopt advice and
recommendations.
The Commission has a secretariat, located in Belgium (in Luik/
Lige/Lttich). The Commission meets at least once per year, and is sup-
ported by several permanent and temporary working groups. The
Commission is a separate legal entity and is competent to act as far as is
necessary for executing its tasks, like hiring sta and paying for research
activities.
The Commission is obliged to publish an annual report about its activities.

3.1.4 Participation
The Commission is competent to allow observers to attend its meetings.
NGOs and other specic organizations can request the Commission to be
recognized as an observer to the Treaty. Such observers may attend the
meetings of the Commission, and may bring forward any information
relevant for the execution of the Treaty. Moreover, the Treaty contains
several information and participation obligations for the Commission with
respect to the observers to the Treaty, like the right to be heard about any
information that might be relevant for the observer.62

3.1.5 Dispute settlement


Parties should solve conicts through negotiations, or by any other
approach deemed acceptable by the parties subject to the dispute. For the
interpretation of EC law, especially the Water Framework Convention, the
ECJ will be competent.63

3.1.6 Conclusion
The Meuse Treaty aims at a sustainable and integrated water management
of the Meuse river basin. However, the Meuse Treaty is not the compre-
hensive integrated agreement governing every aspect of the river basin.
Indeed, besides the Meuse Treaty there is a bilateral agreement on the ow
capacity of the river. This two-track approach means that the institutional

61 Art. 4(2) Meuse Treaty.


62 Art. 6 Meuse Treaty.
63 Art. 8 Meuse Treaty.
Joint governance of transboundary river basins 209

and legal provisions are not formally fully integrated. Water quality and
water quantity are regulated by separate treaties, which provide for dierent
institutions, covering dierent regions. A complete integrated approach,
combining both frameworks, depends heavily on the actual (coordinated)
implementation.64
The Treaty mainly takes a managerial approach in order to serve the goal
of a sustainable and integrated river management. The Commission is the
institutional provision through which the transboundary management of
the river will be coordinated. When the Commission adopts an advice, a
recommendation or a decision, the contracting parties shall take the neces-
sary measures to implement them, and they shall inform each other about
these measures. However, the explanation of the Dutch government with
regard to the provisions of the Meuse Treaty does not conrm the view
that the Commission can indeed bind the Treaty parties. In a legalistic
interpretation, it can be argued that there is a binding eect, meaning that
the contracting parties shall implement the advices and recommendations
of the Commission. However, considering the importance of trust-building
and cooperation, one might assume that this legal approach, if applicable,
might probably freeze the relationships between the river basin states, and
might thus even turn out to be a less eective approach. The fact that acts
can only be taken by unanimity voting (having the majority present),
together with this fear to get bound to those acts, can easily paralyze the
decision-making within the Commission.
There has been a shift of decision-making by Treaty negotiations
towards decision-making by the River Commission. When the
Commission succeeds in reaching an agreement with the requirement of
voting by unanimity the Treaty parties are expected to implement these
provisions. This approach is more exible than standard-setting through
Treaty negotiations, where ratication would be required. Because of the
complexity of managing a river basin, such a managerial approach seems
better than the traditional, quite rigid, Treaty instrument. However, one
may wonder how in the regime-setting (decision-making within the
Commission, and implementation by the Treaty Parties) democratic
control would still inuence the decision-making process. It is for instance
not out of the question that a national parliament would criticize the deci-
sion (advice or recommendation) of the Commission, and thus would
oppose the implementation of the Decision.

64 As already noted by Bouman with respect to the predecessor (the Treaty con-

cluded in 1994), (1996), p. 165. The website of the Meuse Commission doesnt refer
to the Meuse Discharge Treaty from 1995.
210 Transboundary legal context

The framework approach enables the basin states to keep their specic
organization of water management and the decision-making struc-
tures, including their democratic control mechanisms. It cannot be
denied that there is a remarkable dierence between the (Latin oriented)
cultures of Belgium and France and the Calvinist culture of (part of)
the Netherlands. It would be interesting to examine how those
dierent backgrounds inuence the specic decision-making within the
Commission.
The contracting parties must respect several environmental principles of
EC law. In terms of concrete substantive norms, the Treaty contains some
clear norms to be respected by the contracting parties, like information
duties in case of emergencies, and the obligation to reduce as much as pos-
sible the disposal of polluted dredge. Considering these provisions, there
would be a possibility for a Treaty party to state that another party is in
non-compliance with a specic provision of the Treaty. However, and in
line with the managerial approach, disputes should primarily be settled
through negotiation.

3.2 The Commission for the Protection of the Rhine

3.2.1 Introduction
In addition to the analysis of the Meuse Commission, we now pay atten-
tion to the main characteristics of the Commission for the Protection of the
Rhine (the Rhine Commission). This river with a length of 1,248 km is the
biggest river in western Europe. It ows from Switzerland through France,
Germany and the Netherlands to the North Sea. Moreover, parts of
Austria, Liechtenstein, Luxembourg and Belgium contribute to the river
ow. Important industries are located near the river. The 1986 Sandoz acci-
dent triggered a shift towards more ecological concerns. In addition, the
major oods in 19931994 and 19941995 drew attention to creating mea-
sures to protect against ood protection.
By 1950 the International Commission for the Protection of the Rhine
had been established, on an informal base, by the riparian states. In 1963 a
Treaty formally established the Commission, with a Secretariat.
Some specic substantive Treaties were concluded, like the 1976
Convention on the Protection of the Rhine caused by Chlorides, and in
1991 the signed Additional Protocol.65 In addition, the adoption of the
Convention for the Protection of the Rhine against Chemical Pollution in

65 Bonn, 3 December 1976 (1977) 16 ILM 242. The additional protocol was

concluded on 25 September 1991. See Nollkaemper (1996, pp. 154159).


Joint governance of transboundary river basins 211

1976 seemed important too.66 Later on it appeared that these formal agree-
ments were not quite as eective as expected. In contrast, the non-binding
Rhine Action Program adopted in 1987 is seen to be more successful than
the legally binding arrangements, although it is hard to state which specic
political or other causes contributed to the enhanced protection of the
Rhine against pollution.67 At least a number of civil law suits have con-
tributed to more emphasis on environmental concerns. The use of the river
for polluting discharges has been contested for instance in the famous
French Potasium Mines case.68
The Ministerial Conference of 1994 asked the International Commission
to prepare a new Treaty, in order to include new insights and, particularly,
to regulate a wider scope of protection than was formerly done. Finally, on
12 April 1999, the Treaty for the Protection of the Rhine was signed.69 The
contracting parties are: France, Germany, Luxembourg, the Netherlands,
Switzerland and the European Community. This Treaty gives a legal base
to topics already discussed in the Rhine Action Plan of 1987.

3.2.2 Treaty
The Treaty for the Protection of the Rhine now explicitly focuses on an
integrated approach towards the sustainable development of the ecosystem
of the river. The Treaty contains multiple goals including:

sustainable development of the ecosystem, which includes the


improvement and conservation of the surface water and groundwater
quality;
conservation of the natural ow of the river;
conservation of the water supply, in an ecological and rational
manner;

66 One may assume that the adoption of this Convention was stimulated by a

similar instrument, adopted a few months earlier by the EEC: Kamminga (1978,
pp. 6279, p. 68).
67 Nollkaemper (1996, p. 155). Nollkaemper does not refer to specic causes for

the eective water quality approach. See, however, Verweij, emphasizing the con-
sensual approach as being the main cause for a quite eective water quality
approach. Additionally, Kamminga refers to the inuence of the conclusion of
specic EEC directives.
68 Mines de Potasse d Alsace SA v Onroerend Goed Maatschappij Bier bv e.a.,

Supreme Court of the Netherlands (23 December 1988) reproduced with English
Summary in Environmental Liability Quarterly (1989, pp. 1518). See about the
(possible) inuence of such civil law suits on the transnational environmental policy
with regard to the Rhine, Nollkaemper (1996, p. 155). The Supreme Court case is
also discussed in the contribution of Betlem and Faure and to this volume.
69 The Treaty came into force on 1 January 2003.
212 Transboundary legal context

improvement of the quality of the river sediment;


the integrated prevention of ood, taking ecological concerns into
account.

It may be obvious that in perceiving such goals quite sensitive questions


need to be answered, and economic and ecological concerns will need to be
balanced. The Treaty refers to environmental principles that need to be
taken into account, like the principle of prevention and the precautionary
principle. In addition, some specic principles are formulated, like the prin-
ciple to compensate (in an ecological sense) signicant technical measures.
Additionally, the principle to prevent trade-os from one environmental
compartment to another has also been codied.70
In addition, the Treaty contains some obligations for the contracting
parties, like the duty to execute monitoring programs, and the duty to inten-
sify their cooperation and to inform each other about the measures under-
taken in their territories. Furthermore, they need to establish a water
quality permit system, and to conduct sucient monitoring and enforce-
ment policies with regard to that.
The Treaty includes the rule that the contracting parties shall take the
required measures in order to implement the decisions of the Rhine
Commission.71

3.2.3 The International Commission for the Protection of the Rhine


The Treaty contains renewed provisions for the Rhine Commission. It enu-
merates the tasks of the Commission, and provides the decision-making
procedure.72 In contrast to the Meuse Treaty, the Rhine Treaty does not
contain the obligation to develop a single river basin management plan. It
focuses only on the Rhine itself, and not on the full river basin.73 This also
means that not all states in which the Rhine river basin is located are a party
to the Treaty (for instance Austria). The Rhine Treaty aims (only) at an
integrated sustainable development of the ecosystem of the river as such.
After the conclusion of the Rhine Treaty in 1999, an additional ad hoc

70 The goals of the Treaty have been noted in Art. 3, and the principles are men-

tioned in Art. 4 of the Treaty.


71 Rhine Treaty, Art. 5(5), referring to the decisions of the Commission based

on Art. 11 of the Treaty.


72 The website of the Commission can be found at http://www.iksr.org.
73 This can possibly be explained by the fact that the Rhine Treaty was con-

cluded (in 1999) just before the adoption of the Water Framework Directive in 2000,
which contains the concept of a river basin (see section 4 of this chapter). The
Meuse Treaty was signed in 2002.
Joint governance of transboundary river basins 213

Commission has been established, with the specic task to execute the
coordinating duties as requested by the Framework Water Directive.74 This
Directive follows the broader concept of river basin management, while the
Rhine Treaty only focuses on the river alone. This means that the Rhine
Commission cannot be used for deliberations in the case of the Framework
Water Directive.
The tasks of the Commission are in line with the already mentioned
goals of the Treaty. The Commission should prepare and assess the inter-
national monitoring programs with regard to the ecosystem of the Rhine.
The contracting parties should conduct these monitoring programs and
inform the Commission about the outcomes.75 Furthermore, there is a
broad competence for the Commission, meaning that it can propose mea-
sures and action-programs to support the goals of the Treaty. Additionally,
it should co-ordinate the warning and alarm plans of the contracting
parties. The Commission should report yearly to the Treaty Parties about
its activities. In addition, it is required to inform the public about the con-
dition of the Rhine and about the results of actions undertaken. In doing
so, it may provide reports to the public.76 Strikingly enough, there has not
been a connection struck between the reporting activities to the Treaty
Parties on the one hand and to the public on the other hand. One can
wonder why it has not been provided that the yearly reports to the Treaty
Parties are at the same time available to the public.
The voting of the Commission should be based on unanimity. When a
specic topic falls under the competence of the European Community, the
Community may then vote instead of the Member States involved.77
The decisions of the Commission will be formulated as recommenda-
tions.78 It may be spelled out by the Commission within which time-frame
the recommendations should be implemented by the contracting parties.
The contracting parties are obliged to inform each other about the national
measures undertaken in order to comply with the recommendations, and
about their results. When a state is not able to comply with a recommen-
dation, it should inform with reasons the Commission. In comparison
with the Meuse Treaty, the Rhine Treaty has a much more elaborate proce-
dural compliance mechanism, meaning that the contracting parties should

74 This has been decided by the International Commission for the Protection of

the Rhine (the ICPR) of 29 January 2001. The members to this ad hoc comit are
naturally not the same as the Rhine Treaty parties.
75 Rhine Treaty, Art. 5.
76 Rhine Treaty, Art. 8.
77 Rhine Treaty, Art. 10.
78 Rhine Treaty, Art. 11(1).
214 Transboundary legal context

inform each other about the progress and compliance of their national
policies in view of the recommendations of the Commission. If a con-
tracting party cannot implement a recommendation of the Commission, it
shall inform the Commission, explaining the reason for non-compliance.
Another party can ask for a meeting to discuss the issue, which shall then
be held within two months. The Commission can decide on measures to
be taken in order to enhance the implementation of the recommendation.
Of course, one wonders what kind of measures are intended by this Treaty
provision.79
Just as with the Meuse Treaty, it can be questioned what are the legal
binding eects of the decisions (recommendations) of the Commission.
The provisions of the Rhine Treaty seem to stress even more that the deci-
sions of the Commission bind the contracting parties. According to the
explanation made by the Dutch government to the Dutch Parliament, there
is however no competence for the Commission to bind the contracting
parties. The explanation by the Dutch government is, however, confusing,
since it explicitly states in Article 5 that the contracting parties shall take
the necessary measures to implement the decisions of the Commission.80

3.2.4 Conclusion
The Rhine Treaty contains a more elaborate procedural mechanism for
the contracting parties to ensure co-operation and compliance. For lawyers,
the provisions of the Treaty seem quite paradoxical: on the one hand, the
Commission shall direct its acts in the form of recommendations to the
contracting parties (which is a soft approach), while on the other hand, a
rm deadline may be set (which is of course a strict and legalistic
approach). When this deadline has not been followed up, the contracting
party shall announce its non-compliance and shall state the reasons for
that. The Commission is then entitled to take further measures. However,
this specic approach can only be understood in the light of providing a
basis for communication among the contracting parties, and a positive atti-
tude to communication about problems and solutions when implementing
the recommendations of the Commission. This managerial approach is
chosen and deemed to be more important and eective than an enforce-
ment approach focusing on blaming and penalizing the non-complying
party.

79 An interesting point for further research would be whether the provisions of

the Rhine Treaty (and the Meuse Treaty) have been followed up into practice, and,
if so, in what way.
80 Staten-Generaal, 20002001, 27 511, nrs. 114 and 1, pp. 67, and, contrary,

p. 5.
Joint governance of transboundary river basins 215

Nevertheless, what needs to be investigated is how this managerial


approach really works in practice. In fact, the Rhine Commission has not
yet adopted a formal decision (recommendation) to which the compliance
procedure would be applicable. The fear of getting involved in the compli-
ance procedure is, as such, an important reason for choosing an informal
way of decision-making.
For lawyers, the democratic accountability with regard to the implemen-
tation of the Treaty provisions is a focal point. This concerns, on the one
hand, the accountability of the Commission itself, and, on the other hand,
the national democratic accountability mechanisms. The latter concern the
democratic control of the national representatives to the Commission, as
well as the control of the national authorities responsible for the imple-
mentation of the recommendations of the Commission within the Member
States. In this respect, one should then also investigate how the democratic
(and legal) control in the national order on the one hand relates to the man-
agerial control by the Commission on the other hand.
With regard to the democratic control of the decisions of the
Commission, one should not overlook the importance of the exible
decision-making process, facilitating stake-holders and environmental
NGOs to participate. Even outside the decision-making process of the
Commission, tremendous inuence can follow from media-publicity. The
Brent-Spar case, where Greenpeace protested against the dumping of an
o-shore platform into the sea, serves in this respect as an illustration.

4 SOME SURROUNDING LEGAL DEVELOPMENTS:


WHAT HAS BEEN AGREED AT THE
INTERNATIONAL AND EC LEVEL?
The specic Treaties and political arrangements with respect to the rivers
Rhine and Meuse cannot be looked at in isolation. They are surrounded by
international and European regulatory developments. The most important
ones will be shortly discussed in this section. Specic attention will be paid
to the European Water Framework Directive 2000.

4.1 International level

For water resources, there are more than 300 international treaties covering
200 river basins shared by two or more states.81 In addition, there are a large

81 Kiss and Shelton (2000) refer to Linnerooth (1990).


216 Transboundary legal context

number of recommendations. Meanwhile, some overarching international


agreements have been developed, such as the OSPAR Convention and the
Helsinki Convention.

4.2 1992 UN ECE Convention on the Protection and Use of


Transboundary Watercourses and International Lakes (Helsinki
Convention)82

This Convention focuses on harmful transboundary environmental


impacts, and thus does not take a real holistic approach combining envi-
ronmental and water management concerns. Water quantity has only
implicitly been included.83 For the prevention of water pollution, the
Convention provides a number of important provisions. The Convention
contains some important starting points, such as the prevention and pre-
cautionary principle, and the polluter pays principle which must guide the
state parties (Art. 2(4) and (5)). Also covered is the problem of cross-
pollution: states should avoid the transfer of pollution from one part of the
environment to the other (Art. 2(3)). However, the Convention indicates
that the real measures should be adopted between riparian states, in sepa-
rate and specic agreements. The preamble refers to the importance of
cooperation between states by means of agreements between countries bor-
dering on the same waters.84
Article 9 II of the Helsinki Convention contains the obligation to enter
into bilateral or multilateral river agreements for river basins; such agree-
ments should provide for the establishment of joint bodies.

4.3 1992 Paris Convention on the Protection of the Marine Environment


of the North-East Atlantic85

This Convention entails obligations of contracting parties concerning


pollution from land-based and o-shore sources. It also contains several
environmental principles, including a denition of the precautionary prin-
ciple. The Annexes to the Convention contain rather detailed regulations,
for instance with regard to the prevention and elimination of pollution

82 See UN Economic Commission for Europe website: www.unece.org/env/

water; see also 31 ILM (1992), p. 1312.


83 Bouman (1996, p. 165).
84 Kiss and Shelton (2000, p. 404).
85 This Convention replaces the 1972 Oslo Convention on dumping and the

1974 Paris Convention on land-based pollution. Its website is at http://


www.ospar.org.
Joint governance of transboundary river basins 217

from land-based sources. The parties shall adopt programmes and


measures using the best available techniques for point sources and the best
environmental practices for point and diuse sources.
The Paris Convention established a Commission to supervise the imple-
mentation of the Convention. The Commission consists of delegations of
each of the Contracting Parties. It may adopt decisions and recommenda-
tions by unanimous vote. Should unanimity not be attainable, the
Commission may nonetheless adopt decisions or recommendations by a
three-quarters majority vote of the contracting parties (unless otherwise
provided in the Convention).
Recommendations are not binding, but decisions are. A decision shall be
binding on the expiry of a period of 200 days after its adoption for those
contracting parties that voted for it and have not within that period notied
the Executive Secretary in writing that they are unable to accept the deci-
sion (provided that at the expiry of that period three-quarters of the con-
tracting parties have either voted for the decision and not withdrawn their
acceptance or notied the Executive Secretary in writing that they are able
to accept the decision). All decisions adopted by the Commission shall,
where appropriate, contain provisions specifying the timetable by which the
decision shall be implemented.

4.4 EC Framework Directive on Water Quality

This Directive aims at a good water status to be reached in 2015. The


Directive covers inland surface waters, transitional waters, coastal waters
and groundwater. An integrated and programmatic approach is the funda-
mental starting point.86 The environmental objectives are spelled out in
Art. 4 of the Directive, and, consequently, several quality standards can be
set by subsequent decision-making. The Directive takes a result-oriented
approach, aiming at reaching the set quality standard.87
The Framework Water Directive also presents a managerial approach:
the framework contains basic principles and a general action programme
will need to be developed through co-ordination, integration and further
standard setting. The preamble states:

There are diverse conditions and needs in the Community which require
dierent specic solutions. This diversity should be taken into account in the
planning and execution of measures to ensure protection and sustainable use of

86 See for an extensive description of WFD Grimeaud (2004, pp. 2739); see

also Kallis and Butler (2001, pp. 125142).


87 See the proposal of the European Commission COM(2006) 397 def.
218 Transboundary legal context

water in the framework of the river basin. Decisions should be taken as close as
possible to the locations where water is aected or used. Priority should be given
to action within the responsibility of Member States through the drawing up of
programmes of measures adjusted to regional and local conditions.88

The Directive consequently does not include a full harmonization of


laws of the Member States; most of the articles leave a margin of discre-
tion to Member States. In fact, the WFD leaves more discretion compared
to the preceding Directives. Additionally, more stringent measures may be
adopted by the Member States.
The Directive prescribes a river basin management approach where
it concerns international rivers. The Directive obliges Member States to co-
ordinate international river basin management plans. Member States need
to ensure that a river basin covering the territory of more than one Member
State is assigned to an international river basin district.
In the case of an international river basin district falling entirely within
the Community (e.g. the Meuse), Member States shall ensure co-ordination
with the aim of producing a single international river basin management
plan.89 Where such an international plan is not produced, Member States
should develop a river basin management plan covering at least those parts
of the international river basin district falling within their territory to
achieve the objectives of the Directive. The contracting parties to the
Meuse Treaty have explicitly agreed to co-operate in order to develop a
single river basin management plan.90
Where a river basin district extends beyond the territory of the
Community, the Member State or Member States concerned shall endeav-
our to establish appropriate co-ordination with the relevant non-Member
States, with the aim of achieving the objectives of the Directive throughout
the river basin district (thus, as one can interpret, even within the territory
outside the Member States).91 Member States shall ensure the application
of the rules of the Directive within their territory. Also, for the interna-
tional river basins exceeding the borders of the EU, a single river basin
management plan should in principle be produced. Where this is not pos-
sible, the plan should at least cover the portion of the international river
basin district lying within the territory of the Member State concerned.92
Within the Rhine Treaty, no reference has been made to the establishment

88 WFD, Preamble (13).


89 WFD, Art. 13(2).
90 Meuse Treaty, Art. 2.
91 Art. 3(5) WFD.
92 Art. 13(3) WFD.
Joint governance of transboundary river basins 219

of a single river basin management plan but, nevertheless, an ad hoc com-


mission has been set up in order to co-ordinate the WFD duties.
The Member States should conduct a co-ordinative approach for imple-
menting the requirements of the Directive for the whole river basin. They
may use existing structures stemming from international agreements.
Member States may identify an existing national or international body as
competent authority for the purpose of this Directive.93
For the execution of the WFD duties, the established Commissions for
the Meuse and the Rhine can full an important task. The Meuse Treaty
explicitly aims at but does not oblige the adoption of a single inter-
national plan. The compliance of the chosen regime approach with regard
to the Water Framework Directive is a major point of attention.94 In an
infringement procedure, Luxembourg argued that the International River
Commissions as established for the Rhine and the Meuse, execute the co-
ordinatory duty as required by Art. 3(4) of the Framework Directive. As
the European Commission did not contest that argument, the ECJ did not
assess this statement. In future, it can for instance be questioned whether
the outcome of, e.g. the provisions of the Meuse Treaty, is in compliance
with the WFD. The mere establishment of a Commission is not enough.
However, the choice for this regime seems to be the right one. The
Transboundary River Commissions are able to conduct the necessary case-
specic approaches for the particular water basins. It is widely recognized
that uniform standards are not the best environmental approach, due to the
specic circumstances that often need to be taken into account.95 In this
respect, the Transboundary River Commissions have an important task to
endorse the case-specic examinations for establishing a coherent river
basin policy. Nevertheless, a close examination of the real outcome of the
activities is needed in order to nd out whether they will indeed succeed in
producing an eective meaningful approach. The enforcement of the Water
Framework Directive by the Commission and, where possible, by citizens,
especially where it concerns environmental quality standards, will in this
respect play an important role.
In this respect, it will be interesting to see what will be the meaning of
Article 13 of the WFD. This article gives a procedural provision for issues
which cannot be dealt with at the level of a Member State. It states that
where a Member State identies an issue which has an impact on the man-
agement of its water but cannot be resolved by that Member State, it may

93 Art. 3(6) WFD.


94 C-32/05 (30 November 2006), at 71/72.
95 Kamminga (1978, p. 71).
220 Transboundary legal context

report the issue to the Commission and any other Member State concerned
and may make recommendations for the resolution of the issue. The
Commission shall then respond to any report or recommendations from
Member States within a period of six months. One might question what, in
a legal sense, the Commission can do. In some cases it can consider start-
ing an infringement procedure against a non-complying Member State. In
such a case, the enforceability of the Directive is at stake. Besides this legal
and conict-based approach, one may assume that, for solving the issue,
managerial approaches would be extremely helpful too.

4.5 Overlapping legal regimes

The overlap of the secondary legislation of the European Community and


the tasks of the international commissions overlap each other, both instru-
mentally and institutionally.96 This raises some legal diculties, which this
chapter does not discuss.97 We now want to focus on one specic proposal
recently formulated in the legal literature, which tries to solve the dilemma
of the overlap of international and European law with regard to inter-
national river basin management. It concerns a plea for the development of
a legal instrument, to be prescribed by the Water Framework Directive, in
order to frame the co-operation duties among river basin states and
regions.98 The authors comment that the WFD falls short with respect to
the prescription of the necessary co-operation among river basin states.
The WFD obliges Member States to co-operate with regard to trans-
boundary river basins, but does not prescribe (exactly) how that should be
done. The proposed idea entails that the WFD would prescribe the estab-
lishment of a supranational authority for a river basin (a water basin
authority). The authors suggest that, with such a provision, the Member
States could more easily comply with the several duties to co-operate as pre-
scribed by the WFD, and that it would prevent them from making use of
international law in order to establish a specic river Treaty (as has been
done with regard to the Meuse and the Rhine). Indeed, the simultaneous
application of international and EC law leads to some complex legal ques-
tions, and the proposal seems from that respect quite convincing. It aims at
developing a responsible supranational authority, which would also be
subject to legal procedures in case of non-compliance. However, it can be
questioned whether a far-reaching and top-down prescription of the

96 As noted by Kamminga (1978).


97 As being discussed, recently, by Hey and Van Rijswick (2007).
98 Hey and Van Rijswick (2007, pp. 1617).
Joint governance of transboundary river basins 221

method of co-operation between river basin states would be benecial, and,


moreover, would indeed lead to a more eective outcome compared to the
present situation. As such, the proposal does not provide a solution for
rivers with a basin partially outside the territory of the EU. In such cases,
some overlap of international and European law would still be necessary.
Furthermore, the proposal does not specify what specic competences the
supranational authority should have, and how those competences then
would relate to the national responsibilities of the Member States. The
authors suggest that the transnational authority should be the responsible
institution that should be confronted with infringement procedures by the
Commission. In this view, the authority should have important and far-
reaching powers with respect to the Member States, because it would not
otherwise make any sense to hold the authority legally responsible for non-
compliance. Where this would be the intention, it should certainly be con-
sidered how democratic control can then be executed with regard to such a
supranational authority. Democratic accountability procedures are partic-
ularly important because of the quite broad margin of discretion that nat-
urally should be given to a body that is responsible for managing a river
basin. As already explained in section 2, the governance of an international
river basin management requires decisions with regard to many dierent
purposes of the river system, and the dierent interests quite often conict
with each other.
Moreover, is should also be considered whether the prescription to estab-
lish supranational authorities with competences to adopt binding deci-
sions and even enforcement decisions would not lead to an adversial and
thus less benecial atmosphere. History has shown that law can stimulate
and back up co-operation among river basin states, but that law as such was
not the main driver for progress in river water management. In this respect,
one should be cautious about a legalistic approach to the management of
international river basins.

5 CONCLUDING OBSERVATIONS

5.1 The common approach of a managerial and not so much legalistic


governance style

Considering the quite complex characteristics of river basins, with many


conicting concerns and threats, and, moreover, considering progressing
science, a holistic and continuous managerial approach, including some
administrative discretion, is needed for governing river basins. Specically
for international river basins, there is a need for co-operation with quite
222 Transboundary legal context

some discretion for the administrative decision-making, in order to be able


to endorse case-specic solutions.
In contrast to this rather soft approach, lawyers would typically put
emphasis on legal certainty, and subsequently on the need for equitable and
binding standards, combined with a robust enforcement regime. In view of
this, one can imagine that lawyers would feel quite uncomfortable with the
exible approach through regime building. However, the emphasis on
typical legal values and legal procedures would most likely hinder the
progress of consensual policy-making, based on communication and trust,
which seems to be more benecial to the management of a river-shed.
Indeed, with the regime approach a shift from lawyers to social
geographists, natural scientists and other experts takes place.99

5.2 Holistic problem solving, even including trade-os and issue-linking

The acceptance of the managerial approach includes, to some extent, the


recognition of making compromises and settling trade-o agreements. The
co-operation between riparian states could benet more from this practical
approach, instead of seeking top-down standard controls on the basis of
strict legal competences and procedures, together with possible court proce-
dures. Indeed, standards that are concluded in overarching international
frameworks, like international treaties such as the OSPAR Convention or
European secondary legislation, can provide important minimum standards,
like the IPPC Directive focusing on an integrated permit containing emission
limit values and the Water Framework Directive and subsequent legislation
concerning binding water quality standards. Also, although liability claims
are by nature quite single-issue oriented, they nevertheless can serve as an
important back-up, stimulating the need for reaching solutions on the supra-
national level. However, legal approaches can by nature not facilitate a com-
prehensive and eective river management approach, where all kinds of
relevant concerns are considered and balanced. It is widely recognized that
uniform standards are not suitable for an adequate environmental protec-
tion, because of the complexity and characteristics of specic environmen-
tal and local circumstances. Indeed, a case-specic managerial approach for
a particular transboundary river basin is needed in order to try to reach the
best suitable and most eective approach. In this respect, the institutional
provision of a river basin commission should be understood and supported.
However, it needs to be recalled that tactical issue linkage often goes
beyond the competences of a River Basin Commission, for instance when

99 As already stated by Kamminga (1978, p. 76).


Joint governance of transboundary river basins 223

an activity not related to the river, like a railroad, is linked towards a river
basin concern. This issue linking is often a quite opaque approach, but can
in specic dossiers be necessary, especially for a victim state. Without that,
and so long as adequate substantive norms are lacking (which will be ever
possible, since a holistic system consisting of legally binding standards
seems unrealistic), the victim state would remain in an unfortunate position
(which would not benet the downstream river basin).

5.3 Towards sophisticated and accountable river-regimes

Finally, we conclude this chapter by setting the research agenda: it would be


interesting to investigate how a consensual, managerial and compromise-
based approach can t best into the basic values of democratic account-
ability, transparency, legal certainty and other basic legal principles. Indeed,
the fundamental concern of legal certainty and the possible advantages of
law should not be abandoned, thereby taking into account that legal stan-
dards can provide to some respect important basic protection. On this basis,
managerial regimes can build further towards river-specic solutions. In
summary, we conclude that instead of a major focus on hard choices to be
made with regard to supranational legal competences, legal standards, legal
enforcement and dispute settlement procedures, it seems more benecial for
the management of transboundary rivers to take a broader view, and to
stimulate a sophisticated development of managerial river regimes. On the
one hand, standard-setting can play an important role in Europe, the EU
already provides such standards, which need to be followed by the Member
States. On the other hand, because of the recognition that administrative
discretion is necessary, lawyers should also concentrate on the question of
how (national) democratic control can be executed with regard to (interna-
tional) decision-making for a transboundary river, and, on the other hand,
on the specic and important back-up function that law (in the form of reg-
ulations and liability claims) certainly has towards the further development
of managerial river regimes.

REFERENCES

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Boyle, A.E. (2005), Globalising Environmental Liability: The Interplay of
National and International law, Journal of Environmental Law 17(1), 326.
Chayes, A. and Chayes, A.H. (1995), The New Sovereignty: Compliance With
International Regulatory Agreements, Cambridge MA: Harvard University Press.
Darell, A.H. (1989), Killing the Rhine: Immoral, but is it Illegal?, Virginia Journal
of International Law, 29, 421472.
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Dekker, R.H. and De Villeneuve, C.H.V. (1995), Internationale aspecten, in Van


den Berge, A.P. et al., Bestrijding van watervervuiling. Vijfentwintig jaar WVO,
Den Haag: Ministerie van Verkeer en Waterstaat en de Unie van Waterschappen,
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Van Dunn, J.M. (1996), Non-Point Source River Pollution: The Case of the River
Meuse, The Hague: Kluwer Law International.
Elni (1998), Environmental agreements. The role and eect of environmental
agreements in environmental policies, London: Cameron May.
Grimeaud, D. (2004), The EC Water Framework Directive An Instrument for
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HarmoniCOP (2005), Learning Together to Manage Together, Improving
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Hey, E. and Van Rijswick, H.F.M.W. (2007), De stroomgebiedsbenadering als
impuls voor transnationaal waterbeheer. De Kaderrichtlijn water en de verhoud-
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Internationale Maascommissie, Internationaal stroomgebied Maas, Overkoepelend
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Kallis, G. and Butler, D. (2001), The EU Water Framework Directive: Measures
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Kamminga, M.T. (1978), Who Can Clean Up the Rhine: The European
Community or the International Rhine Commission?, Netherlands International
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Kiss, A. and Shelton, D. (2000), International Environmental Law, Ardsley, New
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Linnerooth, J. (1990), The Danube River Basin: Negotiating Settlements to
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Von Meijenfeldt, H.G. (1996), International Regulatory Ins and Outs of the
Meuse Pollution, in Van Dunn, J.M., Non-Point Source River Pollution: The
Case of the River Meuse, The Hague: Kluwer Law International.
Meijerink, S.V. (1999), Conict and Cooperation on the Scheldt River Basin,
Dordrecht/Boston/London: Kluwer Acadamic Publishers.
Mostert, E. (2003), Conict and Co-operation in International Freshwater
Management: A Global Review, International Journal of River Basin
Management, 1(3), 112.
Nollkaemper, A. (1993), The Legal Regime for Transboundary Water Pollution:
Between Discretion and Constraint, Utrecht: Martinus Nijho, 173174.
Nollkamper, A. (1996) The River Rhine: From Equal Apportionment to
Ecosystem Protection, RECIEL 5(2), 152160.
Romano, C.P.R. (2000), the Peaceful Settlement of International Environmental
Disputes: A Pragmatic Approach, The Hague: Kluwer Law International.
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Van Dunn, J.M., Non-Point Source River Pollution: The Case of the River Meuse,
The Hague: Kluwer Law International, pp. 38.
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Looser Regulation?), Law & Society Review, 34(4), 10071054.
WWF (2007), Worlds top 10 rivers at risk, March 2007, www.panda.org/freshwater.
8. A new look at environmental impact
assessments: using customary law to
prevent domestic and
transboundary environmental
damage
Jack Jacobs

1 INTRODUCTION

Recently, a major development project was planned in northern Israel in an


ecologically sensitive area. In light of the projects impact on the environ-
ment, ocials from Israels Ministry of Environmental Protection
requested that the regional planning and building committee require the
preparation of an environmental impact assessment (EIA) prior to con-
struction. The committee rejected the Ministrys requests, arguing that the
national EIA regulations allowed the committee discretion on this issue
and therefore they had no absolute obligation to prepare an EIA.1
Israels EIA regulations are the rst legislative tool used to examine the
legality of a development project. Although the law is relatively compre-
hensive, it only requires an EIA for major infrastructure projects (e.g. dams,
power plants and highways). As a result, smaller-scale projects slip through
discretionary cracks.2 So, in an eort to encourage project planners to

1 Israel Planning and Building Regulations (Environmental Impact

Statements), 1982.
2 Ibid. The Israeli EIA regulations state, Authority to require statement submis-

sion 3. In addition to the provisions of regulation 2, a representative of a minister in


a planning agency or a planning agency presented with a scheme whose implemen-
tation may, in its opinion, have a signicant impact upon environmental quality, may
require the submitter of the scheme to prepare a statement and to submit it to the
planning agency in addition to the scheme documentation submitted; a requirement
for submission of a statement may be made at any stage of consideration of
the scheme prior to its approval. Israel Planning and Building Regulations
(Environmental Impact Statements), 1982 [translation] emphasis added.

225
226 Transboundary legal context

conduct an EIA, an argument emerged during consultations with the


Ministrys legal department, that the principle mandating the use of EIAs
under similar circumstances has become customary law, and therefore the
regional planning and building committee is obligated to require the prepa-
ration of an EIA.
If the use of EIAs is recognized as customary law, as suggested by this
chapter, environmental advocates and policymakers around the world will
be empowered with an eective tool to encourage the preparation of EIAs,
to an internationally accepted standard, on a wide range of development
projects. The implications of this assertion are vast and could set an impor-
tant precedent for the adoption of other poorly enforced environmental
conservation practices as obligatory customary law.
After reviewing EIAs from a historical perspective (section 2), this
chapter will discuss how national laws, treaty obligations, and principles of
international environmental law have attempted to encourage compliance
with core EIA concepts around the world (section 3). Then, this chapter
will review the traditional requirements for proving customary law and
suggest that EIAs may now be considered a customary obligation in both
the domestic and transboundary context (section 4). Finally, this chapter
will explore the implications of elevating the EIA to customary law status
(section 5) and suggest a number of practical ways to enforce these cus-
tomary obligations (section 6).

2 OVERVIEW AND HISTORY OF EIA


An EIA is a systematic and detailed study of the eects that a planned
activity may have on the environment.3 It provides a solid framework for
policymakers and developers to consider the implications of their decisions
before those decisions become permanent.4 Though EIA standards and
practices vary slightly from jurisdiction to jurisdiction,5 the overall EIA
concept to prevent future environmental harm remains more similar than
dierent.
Generally speaking, the EIA process begins by describing the proposed
development, and reviewing applicable legislation.6 Next, the environ-

3 Preiss (1999), citing Jain et al. (1993).


4 Preiss (1999, p. 5).
5 Namely, the amount of discretion delegated to the planning committee, the

role of public participation in the reviewing process, and the type/size/scale of the
development project that triggers the initial EIA obligation.
6 See Preiss (1999), citing Ahmad and Sammy (1985).
Environmental impact assessments: using customary law 227

mental impacts are considered, and a decision based upon the extent,
magnitude and sensitivity of the area is made with regard to which impacts
will be studied.7 Most EIAs require that four main categories of environ-
mental impacts are considered before a project is permitted to continue:
ecological, social, technological and risk of hazards.8 The baseline condi-
tions of the area are then recorded, and compared with the anticipated eco-
logical eects of the proposed project. This comparison will reveal the
expected environmental damage that the proposed project will likely cause.
In order to reduce this impact, a typical EIA will then consider various
ways to mitigate the damage by weighing alternative plans, construction
methods and other potential project locations. The alternatives section is
considered the heart of the EIA document because it organizes and claries
the choices available to decision-makers and provides other ways of accom-
plishing the proposed action.9 At this stage, the EIA report is typically
reviewed by government agencies and open for public comment.
The EIA procedure infuses environmental awareness into the decision-
making process. This process forces planners to consider proposed projects
environmental impacts and nd creative alternative ways to reduce any
degradation. And if no viable alternative way to mitigate the harm is found,
EIAs provide a legally valid basis for halting a development project.10
Many projects never even make it o the drawing-board for fear of
costly environmental studies. In an industry where time is money, devel-
opers are more likely to cancel an environmentally risky project rather than
face costly delays during the EIA review or subject themselves to public
criticism by the environmental community.11 When properly implemented
and strongly enforced, EIAs have served as an eective tool for reducing
environmental damage in both a local and international context for nearly
four decades.
The origin of the EIA, in theory and practice, is credited primarily
to the United States National Environmental Policy Act of 1969
(NEPA).12 Many nations around the world have adopted, in some cases

7 This process is known as scoping.


8 See Preiss (1999), citing Clark and Herington (1988).
9 CIEL (1995), citing: 40 C.F.R. 1502, 14.
10 This is especially important for policymakers who must make unbiased deci-

sions that are not arbitrary or capricious.


11 This is especially true when the proposal reaches the public participation

stage, and is particularly why public participation is essential to the EIA process.
12 United States National Environmental Policy Act (NEPA) (1969), 42 U.S.C

43214370. Full text of NEPA can be found at http://ceq.eh.doe.gov/nepa/


regs/nepa/nepaeqia.htm.
228 Transboundary legal context

almost word-for-word, the EIA standards set by NEPA.13 This landmark


legislation called for the creation of an environmental impact statement
(EIS) for major federal action signicantly aecting the quality of the
human environment . . ..14 Since state-run projects also aect the environ-
ment, most state governments (which are federally funded) have developed
their own EIS requirements.15
NEPA has been described as the grandparent of environmental law16
and has laid a strong foundation upon which other environmental laws are
built. This blueprint for future legislation provided a conceptual frame-
work . . . for any law that aects government decisionmaking, from risk
[assessment] to economic analysis . . ..17
Many nations have used NEPA as the template for their own domestic
EIA legislation. In fact, EIAs are now a standard practice in more than
130 countries worldwide.18 For example, Australia rst enacted a similar
environmental assessment programme in 1974, as did Canada (1973),
Colombia (1974), Germany (1975), Thailand (1975), France (1976),
Philippines (1978), China (1979) Israel (1981), Pakistan (1983), EU (1985),
Italy (1986), Indonesia (1987), Sri Lanka (1988).19 (See Appendix I below
for other nations that have enacted domestic EIA legislation.)
True to their NEPA origins, many of the worlds EIA statutes contain
ve similar elements: (1) review of anticipated environmental impacts;
(2) consideration of ways to mitigate environmental damage; (3) weight of
viable alternatives; (4) evaluation by government authorities; (5) opportu-
nity for public participation.20 The transparency of the EIA process has
also been noted as an essential element for a successful EIA system.21

13 Notice the similar language in the 1985 EC Directive on EIAs applies to

public and private projects which are likely to have signicant eects on the envir-
onment. EC Directive, Article 4.
14 See NEPA (1969, at 4332(c)).
15 Called little NEPAs. Many more environmental impact assessments are pre-

pared to meet state laws than to meet the federal NEPA. Some 20 states have their
own little NEPA laws or programmes. See also Bryan (2005).
16 Campbell-Mohn (2007).
17 Campbell-Mohn (2007).
18 The National Environmental Policy Act (NEPA) is not only central to oper-

ations in the United States, but also to over 130 other nations, which have adopted
analogous statutes. Campbell-Mohn (2001). See Glasson and Chadwick (1999);
Wood (2003); Porter and Fittipaldi (1998).
19 Japan Ministry of Environment (2002).
20 See generally Institute for Environmental Assessment.
21 This is especially applicable in jurisdictions that delegate wide discretion to

agencies, or developing countries where the political environment may limit public
Environmental impact assessments: using customary law 229

3 OBLIGATION TO CONDUCT AN EIA

The planners of a proposed construction project are obligated under a


number of legislative mechanisms to conduct a comprehensive EIA before
being allowed to begin construction.22 Generally, the source of this legal
mandate is determined by where the anticipated environmental impact of
the project will be located. If the environmental impact is expected to aect
an area within the national borders of a single sovereign country, then
domestic EIA legislation would obligate the developers to conduct an EIA.
In situations where environmental harm is expected to reach neighbouring
countries, relevant international treaties and environmental law principles
would obligate that an EIA be conducted to help prevent impending harm.
This chapter will now examine each of the above-stated obligations to
conduct an EIA, and suggest that customary law should also be included
in this list as an additional tool to obligate developers to conduct an EIA
in both a domestic and transboundary context.

3.1 National EIA legislation

As discussed previously, most countries have enacted a national EIA law.23


National EIA legislation applies where the expected environmental impact
of a planned activity will remain solely within national borders.
Unfortunately, this localized legal framework has not been particularly
eective or ecient at accomplishing its ultimate goal of preventing envir-
onmental damage. Domestic EIA laws tend to fail because of inadequate
enforcement mechanisms, exemption for small-scale or private develop-
ment projects and delegating too much discretion to administrative com-
mittees.24 Each of the shortcomings deviates from the core goals of the
EIA.
Even NEPA, the original mold used for future EIA statutes, is seriously
awed. By mandating only major federal action . . . that signicantly

participation in the EIA process. See Tang et al. (2005). See Wenger, Huadong and
Xiaoying (1990, pp. 429439). See also Moorman and Ge (2007).
22 Some EIA laws assign responsibility for preparing the EIA to the project pro-

ponent, while others make it the duty of the government agency with jurisdiction
over the EIA process. See Goldberg (1995, p. 9).
23 There are 192 Member States in the United Nations. Over 130 have a national

EIA law on their books.


24 In the Czech Republic, there is also broad discretion for conducting EIAs,

but this lower standard is only used for new products. Also, discretion is exhibited
in Annex II of the EC Directive on EIAs which lists the types of projects for which
Member States may require EIAs. See EC Directive, Article 4.
230 Transboundary legal context

aects the environment,25 smaller, privately funded development projects


that may also have signicant adverse impact on the natural environment
would not necessarily require an EIS under NEPA.26
In addition to NEPA-inspired national EIA laws around the world, there
are also a number of international treaties that obligate contracting parties
to conduct an EIA on a national level. In this situation, a sovereign nation
agrees to impose EIA restrictions on its citizens, based upon an inter-
national treaty obligation or a desire to comply with soft-law doctrine. In
this scenario, external international forces are used to motivate the creation
of national EIA laws.
The Convention for Biological Diversity (CBD), for example, requires
contracting parties to introduce appropriate [national] procedures requir-
ing environmental impact assessment of its proposed projects that are likely
to have signicant adverse eects on biological diversity with a view to
avoiding or minimizing such eects and, where appropriate, allow for
public participation in such procedures . . ..27
Similarly, Principle 17 of the 1992 Rio Declaration encourages countries
to take responsibility for environmental protection within their national
borders by requiring member nations to reduce domestic environmental
impacts by means of an environmental impact assessment, as a national
instrument, [which] shall be undertaken for proposed activities that are
likely to have a signicant adverse impact on the environment . . ..28
When pollution is expected to aect neighbouring nations, multilateral
environmental agreements (MEAs) may be formed between countries to
reduce adverse environmental impacts. The following is a discussion of
several MEAs that obligate EIAs to be conducted in a transboundary
context.

3.2 Treaty obligation

Transboundary pollution occurs when toxins are transported across


national borders.29 The need to regulate transboundary pollution is an

25 See NEPA (1969).


26 Although NEPA itself would not be applied to such a circumstance, numer-
ous other environmental laws may still be triggered in this type of situation (e.g.
endangered species, clean air and clean water acts, etc). Also, even though only
public projects require preparation of an EIS, many private projects are considered
public if they are activity nanced, assisted, or regulated by a federal agency, for
purposes of NEPA.
27 Convention on Biological Diversity (1992).
28 Rio Declaration on Environment and Development (1992).
29 Air pollution is a common transboundary pollutant.
Environmental impact assessments: using customary law 231

increasing concern of the international community.30 In addition to the


long list of environmental damage that can be caused by this international
infringement, transboundary pollution can also cause signicant strains in
diplomatic relations, resulting in economic and even military crises.31
The Trail Smelter case is one of the earliest and best-known examples
of transboundary pollution.32 For years, a Canadian aluminum smelter,
located on the border with the United States, emitted high levels of sulphur
dioxide into the air. The acid rain and toxic particulate matter was attrib-
uted to the death of livestock and reduced productivity of farmland in the
US State of Washington.33 Although an independent tribunal resolved this
dispute peacefully, many other cases have not enjoyed such an amicable
solution.34
In an eort to prevent crisis situations, reduce environmental degrada-
tion and promote global environmental protection, countries often enter
into binding MEAs. These voluntary agreements serve to expand the cov-
erage of a nations domestic environmental laws and aspirations into the
international arena. Without negating the complex issues surrounding
national sovereignty and diculty with the enforcement of international
law, MEAs can help provide a framework for countries to protect their
natural resources, prevent the transboundary spread of pollutants and
avoid international conict.
The rst hint of an international consensus regarding the importance of
EIAs came in the form of the Stockholm Declaration of 1972.35 This land-
mark document acknowledged the need for a common outlook and for
common principles to inspire and guide the peoples of the world in the
preservation of the human environment.36 Out of the 26 principles agreed
to in Stockholm, seven recognize the need for environmental planning.37
Since the overall goal of EIAs is to inject an environmental consciousness
into the planning process, one could certainly argue that the Stockholm
Declaration paved the way for future EIA policies.

30 Mason (2006).
31 The Green War Hypothesis states environmental degradation is a major
source of poverty and cause of conict. Rising population pressure and falling agri-
cultural productivity may lead to land disputes; while growing water scarcity may
provoke conicts. Environmental stress tends to make people prone to violence as
they seek alternatives to desperate situations (as in Rwanda). See Stewart (2003).
32 Trail Smelter Arbitration (United States v Canada), (1941).
33 Trail Smelter Arbitration (United States v Canada), (1941).
34 Spector (2001).
35 Conference on the Human Environment (1972) [Stockholm Declaration].
36 Stockholm Declaration (1972).
37 See Preiss (1999, p. 7).
232 Transboundary legal context

In addition to the broad environmental principles set forth in the


Stockholm Declaration, a number of MEAs specically refer to EIAs as an
important tool for environmental protection.
Perhaps the most notable MEA with regard to EIAs is the United
Nations Convention on EIA in a Transboundary Context (or Espoo
Convention).38 This treaty was created specically to mandate Member
States obligations to conduct transboundary impact assessment.39 Espoo
represents a strong international consensus on the use of EIAs as a means
to prevent transboundary environmental harm.40 The Convention denes
EIAs as a national procedure for evaluating likely impact of a proposed
activity on the environment.41 Article 2 states that an EIA shall be under-
taken prior to a decision to authorize or undertake a proposed activity that
is likely to cause a signicant adverse transboundary impact.42 The
Convention also requires signatories to notify neighbouring states of pro-
jects with potential environmental eects, allows for public participation
and sets up a system of post-project monitoring and analysis.43
One of the primary benets of joining the Espoo Convention is that
nations, especially in the developing world, are provided with an excellent,
time-tested version of an EIA framework. Unfortunately, only North
American and European countries have currently taken the opportunity to
join this agreement.44 However, if current initiatives are successful in
encouraging additional members to join the treaty, Espoo could serve as an
excellent driving force in the standardization of EIAs throughout the devel-
oping world.
In addition to the Espoo Convention, there are many other MEAs and soft
law declarations that explicitly discuss EIA concepts, or implicitly impose
EIA principles upon member nations. The following is a summary of a
number of documents that contain EIA provisions and currently used to help
prevent transboundary pollution (see Appendix II below for a more complete
list of other MEAs and soft-law declarations that contain EIA provisions):

38 Convention on Environmental Impact Assessment in a Transboundary

Context (1991) (Espoo Convention).


39 Treaty text and secretariat information can be viewed at
http://www.unece.org/env/eia/eia.htm and list of ratifying countries at http://
www.unece.org/env/eia/convratif.html.
40 Hunter, Salzman and Zaelke (1998, p. 367).
41 See Espoo Convention (1991).
42 See Espoo Convention (1991, at Article 2). Also note the similar language to

NEPA (1969).
43 See Espoo Convention (1991).
44 Ratication status and member countries can be viewed at http://www.

unece.org/env/eia/ratication.htm.
Environmental impact assessments: using customary law 233

The World Charter for Nature, Paragraph 11(c), states that activities which may
disturb nature shall be preceded by assessment of their consequences, and
environmental impact studies of development projects shall be conducted
suciently in advance, and if they are to be undertaken, such activities shall be
planned and carried out so as to minimize potential adverse eects.45

Principles on Shared Natural Resources, Principle 4, states that, [s]tates should


make environmental assessments before engaging in any activity with respect to
a shared natural resource which may create a risk of signicantly aecting the
environment of another State or States sharing that resource. . ..46

Agreement of the Association of South-East Asian Nations (ASEAN) on


Conservation of Nature and Natural Resources Article 14 states that any pro-
posed activities which may have signicant eects on the environment shall be
assessed before they are adopted, and the results of this assessment must be
taken into account during the decision making process.47

United Nations Convention on the Law of the Sea (UNCLOS), Article 206,
entitled Assessment of Potential Eects of Activities, requires member coun-
tries conduct an EIA [w]hen States have reasonable grounds for believing that
planned activities under their jurisdiction or control may cause substantial pol-
lution of or signicant and harmful changes to the marine environment.48

Protocol on Environmental Protection of the Antarctic Treaty, Annex I, requires


prior assessment of the impacts of activities on the Antarctic environment or on
dependent or associated ecosystems.49

The United Nations Convention on the Protection and Use of Transboundary


Watercourses and International Lakes, Article 3, requires parties to adopt and
implement legal, administrative, economic, nancial, and technical measures to
ensure that EIAs and other means of assessment are applied.50

45 World Charter for Nature (1982, at Article 11(c)) Activities which may

disturb nature shall be preceded by assessment of their consequences, and environ-


mental impact studies of development projects shall be conducted suciently
in advance, and if they are to be undertaken, such activities shall be planned
and carried out so as to minimize potential adverse eects http://sedac.
ciesin.org/entri/texts/world.charter.for.nature.1982.html.
46 OCDE/GD(95)124.
47 Article 14 of 1985 agreement of the ASEAN on conservation of nature

and natural resource;pleases See also ASEAN Agreement on Transboundary


Haze Pollution (2002); http://sedac.ciesin.org/entri/texts/asean.natural.resources.1
985.html.
48 1833 UNTS 3; 21 ILM 1261 (1982).
49 30 ILM 1455 (1991).
50 1936 UNTS 269; 31 ILM 1312 (1992); http://www.unece.org/env/

water/pdf/watercon.pdf.
234 Transboundary legal context

Convention for the Protection of the Marine Environmental and the Coastal
Region of the Mediterranean (Barcelona Convention), Article 4, requires that
member countries undertake environmental impact assessment for proposed
activities that are likely to cause a signicant adverse impact on the marine envi-
ronment and are subject to an authorization by competent national authorities.51

Protocol on Strategic Environmental Assessment, (SEA Protocol), is an


amendment to the ESPOO Convention that will require its Parties to evaluate
the environmental consequences of their ocial draft plans and programs. SEA
is undertaken much earlier in the decision-making process than EIA, and it is
therefore seen as a key tool for sustainable development. The Protocol also pro-
vides for extensive public participation in government decision-making in
numerous development sectors.52

Convention on the Transboundary Eects of Industrial Accidents, Article 4(4)


states that [w]hen a hazardous activity is subject to an environmental impact
assessment in accordance with the Convention on Environmental Impact
Assessment in a Transboundary Context and that assessment includes an eval-
uation of the transboundary eects of industrial accidents from the hazardous
activity which is performed in conformity with the terms of this Convention, the
nal decision taken for the purposes of the Convention on Environmental
Impact Assessment in a Transboundary Context shall fulll the relevant require-
ments of this Convention.53

Convention on the Law of the Non-navigational Uses of International


Watercourses, Article 12 notes that [b]efore a watercourse State implements or
permits the implementation of planned measures which may have a signicant
adverse eect upon other watercourse States, it shall provide those States with
timely notication thereof. Such notication shall be accompanied by available
technical data and information, including the results on any environmental
impact assessment, in order to enable the notied States to evaluate the possible
eects of the planned measures.54

The Convention on the Protection of the Marine Environment of the Baltic Sea
Area (Helsinki Convention), Article 7, requires the use of EIAs and other means
of joint monitoring and assessment in managing the transboundary water-
courses. The treaty states, [w]here two or more Contracting Parties share trans-
boundary waters within the catchment area of the Baltic Sea, these Parties shall
cooperate to ensure that potential impacts on the marine environment of the
Baltic Sea Area are fully investigated within the environmental impact assess-
ment . . . The Contracting Parties concerned shall jointly take appropriate

51 32 ILM 1069 (1976).


52 30 ILM 800 (1991). Protocol on Strategic Environmental Assessment to the
Convention on Environmental Impact Assessment in a Transboundary Context;
http://www.unece.org/env/eia/sea_protocol.htm.
53 31 ILM (1992).
54 36 ILM 700 (1997).
Environmental impact assessments: using customary law 235

measures in order to prevent and eliminate pollution including cumulative dele-


terious eects.55

Unfortunately, the eectiveness of treaties and international law doc-


trines are seriously limited due to enforcement diculties and the voluntary
nature of these instruments. When disagreement arises, it is usually dealt
with by internal resolution proceedings. Article VII of ESPOO, for
example, requires nations to resolve disputes by means of arbitration.56
Economic pressure also can serve to encourage compliance, but is by no
means a comprehensive solution to the problems facing the enforcement
of international law. In fact, economic sanctions levied against non-
complying parties, though theoretically possible, are dicult to implement
and may even be prohibited by free-trade agreements.57
Another solution for the enforcement of MEAs is for private parties and
companies to include MEA obligations into the text of their independent
business contracts. By referencing and incorporating treaty provisions,
such as the duty to conduct an EIA, into private business transactions, indi-
viduals can play an important role in enforcing MEAs. This technique will
be discussed further in the enforcement section below.

3.3 International environmental law principles

In addition to national legislation and international treaty obligations,


principles of international environmental law are also used to encourage
construction project planners and developers to conduct EIAs in a trans-
boundary context. These guiding doctrines help maintain the health of
our natural environment by articulating essential conservation concepts
and encouraging good governance. EIAs serve as a practical expression of
these otherwise amorphous environmental law concepts. They bring the

55 The Convention on the Protection of the Marine Environment of the Baltic

Sea Area, 1992 entered into force on 17 January 2000, 13 ILM 546 (1974). See also
Cassar and Bruch (2003, p. 195).
56 Espoo Convention (1998, at Articles 7 and 15); mandates that parties must

settle their disagreement independently. If private means are not successful, then
parties may either submit themselves to binding arbitration or to the International
Court of Justice (ICJ) for resolution.
57 In a successful attempt to inuence tuna-dolphin legislation in the United

States, Mexico and other Latin American nations made claims that the 1990
dolphin-safe labelling laws and embargo violated the North American Free Trade
Agreement (NAFTA). They argued that the restrictions on tuna imports into the
US market violated the ow of free trade; http://www.american.edu/TED/
tuna3.htm.
236 Transboundary legal context

ambiguous principles to ground-level and provide a step-by-step process


for concrete action. The EIA process embodies two main international
environmental law principles: the precautionary principle and the duty not
to cause harm to neighbouring nations.
The precautionary principle is probably the most widely accepted theory
in international environmental law, and considered one of the most impor-
tant general environmental principles for avoiding environmental damage
and achieving sustainable development.58 This well-known doctrine states
that [w]hen an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if some cause
and eect relationships are not fully established scientically.59 In contrast
to the basic risk-assessment question of how much harm is allowable? the
precautionary approach asks, how little harm is possible?60 and urges
a . . . a full evaluation of available alternatives for the purpose of prevent-
ing or minimizing harm.61
EIAs play an essential role in the implementation of the precautionary
principle. They provide an established model for determining potential envi-
ronmental harm and a thorough examination of alternative approaches.
And as a result, EIAs allow planners to convert their precautionary goals
into productive action.
Furthermore, the EIA process helps to promote good governance by
encouraging decision-makers to implement a precautionary approach to
problem solving. Since the wait and see attitude of reactionary politics is
incompatible with the EIA process, policymakers are forced to foresee
future harm and take action before it occurs. Healthy EIA practices help
decision-makers to develop a sixth sense for detecting environmental
harm, which will likely spill over into other areas of public policy, and help
prevent a variety of potential harm to society.
EIAs also serve as a practical tool for the implementation of the good
neighbour policy. This principle of international law simply states that no

58 Hunter, Salzman, and Zaelke (1998, p. 607).


59 Wingspread Statement on the Precautionary Principle (1998), Wingspread
Conference Center, Racine, Wisconsin, January 1998; http://www.gdrc.org/u-gov/pre-
caution-3.html. See also Rio Declaration Article 15: Where the threats of serious or
irreversible damage, lack of full scientic certainty shall not be used as a reason for
postponing cost-eective measures to prevent environmental degradation. The pre-
cautionary principle has also been included in a number of other MEAs including: the
World Charter for Nature, Principle 11, G.A. Res 37/7 (Oct. 28, 1982); London
Adjustments to the Montreal Protocol on Substances that Deplete the Ozone Layer;
Biodiversity Convention, Preamble. See also Hunter, supra n. 58, at pp. 360361.
60 Wingspread Statement on the Precautionary Principle (1998).
61 Wingspread Statement on the Precautionary Principle (1998).
Environmental impact assessments: using customary law 237

nation shall cause environmental harm to any other nation,62 and applies
to all nations in the world, regardless of treaty obligation. The policy stems
from the common law principle of sic utere tuo ut alienum non laedus (do
not use your property to cause harm to another)63 and is a foundational
theory to many international treaties, declarations and other instruments.64
Non-compliance with this widely recognized principle of international
law can be counterproductive for developing diplomatic and economic rela-
tionships with other nations. Moreover, international project funding
organizations, such as the World Bank, have indicated that they will not
provide nancial support for projects that are likely to cause appreciable
harm to the territory of other states.65
The Trail Smelter case, mentioned above, reinforced this principle of
international environmental law. The nal opinion of the tribunal notes that
under principles of international law . . . no State has the right to use or
permit the use of its territory in such a manner as to cause injury by fumes
in or to the territory of another or the properties or persons therein . . ..66
Similarly, in the Corfu Channel case,67 where a British warship was
damaged by mines while passing through an Albanian straight considered
international waters, the International Court of Justice (ICJ) held that
every state has an obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States.68
EIAs are an excellent tool to help countries comply with the good neigh-
bour policy. By regularly considering the potential impacts that a project
may have on the environment, nations can eectively distance themselves
from harming their neighbors. In fact, one may argue that conducting
an EIA is really the only way to implement international environmental
law principles because without conducting an in-depth study of the poten-
tial environmental impacts, developers and policymakers cannot make

62 See Hunter, Salzman, and Zaelke (1998, p. 345).


63 See Hunter, Salzman, and Zaelke (1998, p. 345).
64 Eckstein (1995, FN 2426); e.g. Convention on Long-Range Transboundary

Air Pollution (1979) which provides for the prevention of transboundary harm
caused by air pollution; Declaration of the United Nations Conference on the
Human Environment (1972), which states in Article 21 that States have the
sovereign right to exploit resources within their territory only to the extent that such
exploitation does not harm the environment of another state.
65 Eckstein (1995).
66 Hunter, Salzman, and Zaelke (1998, p. 346) quoting Trail Smelter decision

(1941).
67 Corfu case (1949).
68 Corfu case (1949). In that case, the UK claimed that they had a right to use

the straight in order to move between two international water bodies.


238 Transboundary legal context

well-informed or conclusive decisions regarding the feasibility of proposed


development projects.
Therefore, since EIAs are an essential tool for the implementation of
internationally accepted customary environmental law principles they
should now be considered as a customary law in their own right.

3.4 Customary environmental law

Generally, law is created by a nations legislature from the top down and
imposed upon members of society.69 In contrast, customary laws are
formed from the bottom up, where common societal practices inuence
the legislative policies.70 In this manner, common practices become so wide-
spread and accepted that they are respected as unwritten law.71 Over time,
the legal system may recognize these spontaneous norms by enacting a
formal legal rule.72
There are two main elements that are required for customary law to be
formed. First, an actual practice must emerge from a spontaneous and
uncoerced behaviour over a signicant period of time.73 Secondly, individ-
uals of a society must believe (opinio juris74) that the customary practice is
obligatory, as if it was law, and necessary for the common good.75 Societal
belief can be proved by a wide range of evidence, including ocial manuals
and legal briefs.76
Domestic customary law is formed within a local setting by acknowl-
edging existing community practice, whereas international customary law
is formed by the common practices between neighbouring nations. Just as
domestic customary practices can be written down and in the form of a
national law, international custom can be solidied as a binding treaty.
This process of sharing and formalizing customary law is no longer
limited to communities and adjacent countries. Customary laws can also
spread to distant, unconnected nations as well. This expansion of the

69 Parisi (2001).
70 Parisi (2001).
71 Parisi (2001).
72 Parisi (2001, p. 3).
73 France: 40 years; Germany: 30 years.
74 Opinio juris sive necessitatis or Opinio juris (loosely translated as opinion of

justice) is the belief that a behaviour was done because it was a legal obligation.
Describes the widespread belief in the norm and general conviction that the prac-
tice is an essential norm of social conduct. See also Hunter, Salzman, and Zaelke
(1998, p. 225).
75 Parisi (2001, p. 6).
76 See Hunter, Salzman, and Zaelke (1998, pp. 224225).
Environmental impact assessments: using customary law 239

Community
Practice Tim
e

Community Time
Practice CUSTOM

Time
Community
Practice

Figure 8.1 Domestic customary law (common community practice within


a single nation becomes customary law over time)

Country
A

CUSTOM

Country Country
C B

Figure 8.2 International customary law (common international practice


between separate nations becomes customary law over time)

traditional customary law model to a system of customs and practices that


are adopted uniformly around the world can be best described as univer-
sal customary law (see Figures 8.18.3).
Despite its otherwise negative environmental eects, globalization has
contributed greatly to the development of universal customary law.77 Close
interactions between nations have allowed previously inaccessible commu-
nities to be inuenced by outside customs and practices. Today, technology
has enabled a virtual proximity between countries, allowing the sharing of
information as if all nations in the world were next-door neighbours. As
a result, custom can now spread around the world as freely as within a
single nation and quickly become superimposed upon the entire global

77 Griths (2004).
240 Transboundary legal context

community. Once established, customary law applies to all nations, regard-


less of the presence of any express written agreement.78

4 PROVING AN EIA AS CUSTOMARY


ENVIRONMENTAL LAW

As discussed above, customary practices become binding law when a large


population observes that practice over a long period of time. Using this
standard, EIAs must now be considered customary law, in both a trans-
boundary and domestic context, since over 130 nations have expressed
agreement upon core EIA concepts for nearly 40 years.
Furthermore, EIAs must now be considered customary law since they
have become so intimately engrained into and inseparable from other pre-
viously established customary law principles.79 This assertion is especially
true for EIAs in the transboundary context.80 Few nations believe that it is
acceptable international behaviour to send toxins over their borders into the
sovereign territory of neighbouring states. In fact, this presumption today
is preposterous.
However, in a domestic context, proving customary law status is a bit
more challenging.81 Because countries fear relinquishing even a drop of
their national sovereignty, they have historically been reluctant to accept
the customs of other nations as their own.82 But this fundamental territo-
rial instinct is now being trumped by a growing desire to protect their
environmental resources. As a result, the traditional customary law model
has been expanded to include environmental standards and norms from
distant nations (see Figure 8.3). This evolution of customary law doctrine,
based on the necessity to prevent environmental harm, is further evidence
that EIAs must now be considered customary law, in both a transbound-
ary and domestic context.
EIAs can further be considered a matter of customary environmental
law in a domestic context by examining the transboundary impacts of local

78 See dissenting opinion of ICJ Judge Weeramantry, 12, 35 I.L.M. at 908: if

indeed radioactive radiation constitutes a poison, the prohibition against it would


be declaratory of a universal customary law prohibition which would apply in any
event whether a State is party or not to the Geneva Protocol of 1925.
79 Like the precautionary principle and duty not to cause harm to neighbour-

ing states, as previously discussed.


80 See Hunter, Salzman, and Zaelke (1998, p. 367).
81 See Hunter, Salzman, and Zaelke (1998, p. 367).
82 Of all the rights possessed by a nation, that of sovereignty is doubtless the

most important. De Vattel (1897), as quoted in Bagwell and Staiger (2003).


Environmental impact assessments: using customary law 241

Country
A

CUSTOM

Country Country Country


C B D

Note: A widespread custom that is considered a normative practice by Countries A, B, and


C will likely also be adopted by distant, unrelated countries (Country D) that will adopt the
common practice of their distant neighbours and be obligated to behave in accordance with
that custom as if it was national law.

Figure 8.3 Universal customary law (common practices of distant nations


that become widely accepted customary law over time)

projects.83 By focusing on the interconnectivity of the ecosystem, regula-


tors could rightly obligate local developers to conduct an EIA before
moving forward with domestic development projects based upon estab-
lished MEA requirements and international environmental law principles.
Viewing localized pollution as a transboundary environmental problem
has been spurred by the growing scientic consensus on global climate
change and ozone layer deterioration. The international community has
acknowledged the grim reality that even local environmental damage can
have signicant global impacts. As a result, nations are recognizing that
MEAs and international environmental law principles may apply even
where smokestacks are short and borders are distant.

5 IMPLICATIONS OF CONSIDERING AN EIA AS


CUSTOMARY LAW

Elevating the status of EIAs to customary law would encourage good gov-
ernance in developing nations, and improve worldwide compliance with
environmental law. In countries where environmental statutes are absent or

83 It is not unreasonable to assume that these attributes transcend the ecosys-

tem level of resolution, to deeper layers of ecological interconnectivity. Indeed,


ecosystems are by no means closed systems. Rose (1997).
242 Transboundary legal context

severely lacking, customary EIA laws could contribute greatly to the devel-
opment of comprehensive environmental policy. By invoking customary law
as if it were already binding national legislation, developing nations could
eectively bypass their national legislatures and incorporate EIA proce-
dures into their domestic legal system without enduring the laborious, time-
consuming and costly process of creating new law. This abridged legislative
process would allow bureaucratically dense societies to focus on building
stronger environmental protection systems, and devote less time and energy
to the complex world of lawmaking. The result would be more streamlined
government processes and greater environmental consciousness.
Furthermore, by simply labelling EIAs as customary law, countries could
quickly develop a more reliable system for preventing environmental damage
without reinventing the wheel. EIAs are a time-tested, universally accepted,
and obligatory mechanism for preventing environmental degradation.
Customary law status for EIAs would consequently obligate developers to
conduct an EIA in both a domestic and transboundary context even in the
absence of national EIA legislation or international treaty obligation.
As customary law, EIAs can now be enforced by domestic courts in a
similar manner as national legislation, thereby avoiding many of the prob-
lems (e.g. forum non conveniens) that plague the implementation and com-
pliance of international law.

6 ENFORCEMENT OF CUSTOMARY EIA


OBLIGATION
Since customary law is formed from pre-existing practices, most members
of the society already behave in accordance with the customary practice.
Therefore, customary law enjoys widespread compliance and enforcement
measures are rarely required.84 However, when violations do occur they are
typically quelled by an eective threat of total ostracism by the commu-
nity85 or punishment that tends to be economic in nature (i.e. restitution in
the form of a ne or indemnity to be paid to the claimant).86
Customary law can also be enforced by domestic courts as though it has
been enacted by national legislation.87 Thus, custom amounts to a spon-

84 See Parisi (2001). See also Fon and Parisi (2003).


85 Benson (1990).
86 Benson (1990).
87 See Parisi (2001, p. 26): Once emerged, customary rules generate the expec-

tations of the other members of society and those expectations in turn demand judi-
cial enforcement.
Environmental impact assessments: using customary law 243

taneous norm which is recognized by the legal system and granted enforce-
ment as a proper legal rule.88
In some jurisdictions, courts may even hold customary law above their
own domestic legislation. In the European Union (EU), for example, the
ECJ recently relied on customary international law in order to test the
validity of acts of EU institutions and national laws.89 In the Wood Pulp
case, the Court accepted the argument that customary international law
serves to limit the powers of the European Commission under certain con-
ditions.90 In many domestic legal systems, national courts are often willing
to accept that a private party may invoke a rule of customary international
law in an eort to compare a domestic rule with a customary international
law, derive a right out of a customary international law or contest the legal-
ity of a domestic law.91
Therefore, another practical implication of considering EIAs as custom-
ary law is that environmental advocates around the world need not wait years
for politicians to create or amend EIA laws in order to protect natural
resources from impending environmental damage. Instead, where a develop-
ment project is planned and signicant domestic or transboundary pollution
is forecast, environmental advocates could immediately le suit in domestic
courts against developers who have not conducted an EIA prior to beginning
construction, and against lax government bodies that have failed to require
an EIA. The claimants in such an action would argue that the defendant
failed to comply with the internationally recognized customary law standard
and ask the court to enjoin the project until an adequate EIA is properly con-
ducted in accordance with customary law. In addition to injunctive relief,
domestic courts could also impose other equitable remedies such as monetary
damages and punitive nes for failing to conduct a comprehensive EIA.92

88 See Parisi (2001, p. at 3): In such legal traditions, courts enforce customary

rules as if they had been enacted by the proper legislative authority. Custom thus
amounts to a spontaneous norm which is recognized by the legal system and
granted enforcement as a proper legal rule. Judicial recognition of spontaneous
norms amounts to a declaratory (rather than constitutive) function that treats
custom as a legal fact.
89 Wouters (2002).
90 Wouters (2002).
91 Wouters (2002).
92 Injunctive relief could be imposed by the non-compliant party by the court

until a comprehensive EIA is conducted. Also, in the Wells case, the ECJ related to
the remedies that may be imposed upon a party that neglects to carry out an EIA,
in accordance with the law. It held, The Member State is likewise required to make
good any harm caused by a failure to carry out an environmental impact assessment
. . .. Ryall (2005).
244 Transboundary legal context

Raising customary environmental law principles in domestic courts has


been gaining momentum over the last few years. Today, it is not uncommon
for creative environmental lawyers, especially in developing nations, to
successfully use foreign precedent and customary law principles during
domestic trials. Judges are particularly receptive to hearing foreign
jurisprudence in environmental cases, where domestic case law may be rel-
atively limited.
In a recent domestic water pollution case in Kenya, for example, the
nations highest Court discussed the virtues of the precautionary principle
as set forth by the Rio Declaration,93 the polluter pays principle,94 theories
of sustainable development as described by the United Nations World
Commission on Environment and Development (WCED),95 the public trust
doctrine as laid out in the Constitution of Pakistan,96 the fundamental right
to clean environment set out by Principle 1 of the Stockholm Declaration97
and the concepts of environmental justice from a US Appeals Court case.98
Similarly, international human rights lawyers commonly argue claims
in domestic courts where violations of civil and human rights have
occurred. These arguments are based upon universal standards of accept-
able international conduct, and thus, accepted by the court as customary
law.99

93 Republic of Kenya v Peter K. Waweru (2004).


94 Republic of Kenya v Peter K. Waweru (2004, p. 22).
95 Republic of Kenya v Peter K. Waweru (2004, p. 23).
96 Republic of Kenya v Peter K. Waweru (2004, p. 25).
97 Republic of Kenya v Peter K. Waweru (2004, p. 28).
98 Republic of Kenya v Peter K. Waweru (2004, p. 13).
99 Edward (1996), noting: The US Supreme Court recognized that an act of

congress ought never to be construed to violate the law of nations if any other pos-
sible construction remains. In a trilogy of cases in the 1880s, the Court established
that treaties are on equal footing with federal statutes and that, where a treaty and
statute cannot be reconciled, the later in time is controlling. In Paquete Habana,
Justice Blackmun noted: [T]he Supreme Court addressed the power of courts to
enforce customary international law. In invalidating the wartime seizure of shing
vessels as contrary to the law of nations, the Court observed: International law is
part of our law, and must be ascertained and administered by the courts. Where no
treaty or other legal authority is controlling, resort must be had to the customs of
nations. Paquete Habana, 175 U.S. 677 (1900). See also Thompson v Oklahoma, 487
U.S. at 830, and Stanford v Kentucky, 492 U.S. at 368, which raised challenges to the
execution of juvenile oenders. In Thompson, the court held that civilized stan-
dards of decency embodied in the Eighth Amendment prohibited the use of the
death penalty against the juvenile defendant. By following the standard of many
countries which had outlawed juvenile capital punishment, the majority arrived at a
decision consistent with international practice.
Environmental impact assessments: using customary law 245

Also, many of the enforcement problems that exist in the soft law world
of international law could be avoided by localizing environmental protec-
tion by using this customary law approach. Local courts have the home
court advantage when it comes to enforcing judicial decrees upon liable
parties, and much wider jurisdiction than the ICJ, which only hears cases
between sovereign states, who voluntarily submit to its jurisdiction.100
Furthermore, this local solution for enforcing global environmental
protection would also avoid complicated jurisdictional defenses, like forum
non conveniens,101 claimed by polluting defendants in an eort to shorten
the long arm of the law.102
Another creative approach for using the status of customary law to
encourage the use of EIAs is to include environmental protection and pre-
vention clauses into everyday business contracts. Companies are rapidly
realizing that what is good for the environment is also good for business.
Whether encouraged by consumer demands, industry competition, or a
green ideology, business leaders are taking unprecedented steps to include
environmental protection in their daily routine.103
Environmental protection clauses may include explicit terms which
require contracting parties to conduct an EIA as a performance duty under
the contract. The exibility of contract law allows concerned parties to

100 Article 38, para. 5, of the present ICJ Rules of Court (which came into force

on 1 July 1978) provides that: When the applicant State proposes to found the
jurisdiction of the Court upon a consent thereto yet to be given or manifested by
the State against which such application is made, the application shall be transmit-
ted to that State. It shall not however be entered in the General List, nor any action
be taken in the proceedings, unless and until the State against which such applica-
tion is made consents to the Courts jurisdiction for the purposes of the case.
101 Latin, an inconvenient court; The doctrine of forum non conveniens is a

common law principle that gives courts the discretion to decline exercising jurisdic-
tion over certain cases where the underlying principles of justice and convenience
favor dismissal. . . . To prevail on such a motion, the defendant must show that an
adequate alternate forum is available Mardirosian (2003).
102 In 1986, the Bhopal survivors and relatives of the dead sought compensa-

tion in the United States from the parent Union Carbide corporation after the Chief
Justice of the Supreme Court of India said: It is my opinion that these cases must
be pursued in the United States . . . It is the only hope these unfortunate people
have. However, when the case arrived in the United States, the New York District
Court sent it back to the India, holding that the presence in India of the over-
whelming majority of the witnesses and evidence . . . would by itself suggest that
India is the most convenient forum for this . . . case Robertson (1994), and also In
re Union Carbide (1986, p. 866).
103 Juskalian (2006). Until the early 1990s, Nearly every brand and style of

deodorant . . . came in a paperboard box. You opened the box, pulled out the con-
tainer of deodorant, and pitched the box in the garbage. Wal-Mart decided the box
246 Transboundary legal context

privately mandate EIA compliance and coordinate contract clauses with


national environmental laws, international treaty obligations and even
environmental principles. In this manner, individual non-governmental
parties can serve as global policymakers in furthering the sustainable
progress of their industries.
Some sectors have commonly included environmental protection
clauses into their contracts for decades. The real estate industry, for
example, is particularly susceptible to environmental liability due to costly
environmental remediation required by potentially responsible parties.104
Real estate environmental protection clauses may include the following
type of language:

The Property will be kept and used in such a manner as to comply with all legal
obligations and to prevent environmental damage. The Tenant shall indemnify
the landlord against all losses, claims or demands in respect of to any environ-
mental damage arising out of the use or occupation of the premises or the state
of repair of the premises. . .105

Breach of contract claims are relatively straightforward proceedings in


courts around the world, and readily resolved under the common law of
contracts. Environmental contract provisions could help resolve many of
the serious enforcement and jurisdictional problems faced by international
law claims. Traditional contract remedies would be applied by the court in
an eort to remedy a breach. The common law remedy of specic perform-
ance, for example, allows the court to order compliance with a specic con-
tractual obligation.106 In the case of an explicit obligation to comply with
customary EIA provisions included in a valid contract, a court could order
an EIA to be conducted in the event of a breach. By simply shifting the
responsibility of preventing environmental harm into the private sector

was an unnecessary cost and used its clout to push suppliers to ship deodorants
without boxes. Wal-Mart executives were probably focused on the costs of shipping,
shelf space and raw materials, but as result millions of trees were not cut down,
acres of cardboard were not manufactured only to be discarded, 1 billion deodor-
ant boxes didnt end up in landlls each year.
104 For example, the US Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) imposes liability that requires all past
and present owners and operators of a property to be held joint and severally liable
for pollution of the land and costly environment remediation that results, 42 U.S.C.
9601 et al.
105 See generally, http://contracts.onecle.com/loudeye/st-james.lease.2000.12.

21.shtml.
106 This remedy is rare, except in real estate transactions and other unique prop-

erty, as the courts do not want to get involved with monitoring performance.
Environmental impact assessments: using customary law 247

through contract law, the imprecise haze surrounding the enforcement of


international law would rapidly dissipate.

7 CONCLUSION

EIAs have been widely used as a precautionary tool to reduce environmen-


tal damage from development projects for nearly 40 years. By infusing an
environmental consciousness into the planning process, EIAs require plan-
ners to consider the anticipated environmental impacts of development
projects and weigh all viable alternatives. Over time, and with the aid
of public pressure, EIAs have become normative practice throughout
the world. This chapter has suggested that because of their widespread
acceptance and use over time, the core EIA principles have now become
customary law. As a result, EIAs must be conducted prior to beginning
development projects, even in the absence of national legislation, interna-
tional treaty obligation or other environmental law principles.
The customary status of EIAs in a transboundary context is strongly
rooted in existing customary law principles. However, by considering the
potential global eects of localized pollution, even domestic projects should
be required to conduct an EIA under international environmental law.
One of the main practical implications of granting customary law status
to the EIA is improvement to governance practices and environmental
policy around the world. A proven model for preventing environmental
degradation can be implemented without enduring the burdensome law-
making process, thereby streamlining bureaucracy and encouraging gov-
ernment ocials to consider the future impacts of their decisions.
Another benet of considering EIAs as customary law is that compliance
and enforcement measures can now be carried out by domestic courts. As a
result of avoiding complicated and frustrating jurisdictional issues and over-
riding weak national EIA laws, the overall eectiveness of EIAs in achiev-
ing their goal of preventing environmental damage will be greatly improved.
Furthermore, environmental advocates, especially in the developing world,
can take advantage of customary EIA status by petitioning domestic courts
to obligate developers to conduct an EIA prior to beginning construction
projects, in both a domestic and transboundary context. In turn, domestic
courts are empowered to force lax government agencies to require a compre-
hensive EIA before issuing a building permit for development projects.
Lastly, by including environmental protection clauses (like the require-
ment to abide by EIA obligations) into everyday contracts, individual
parties can play an important role in helping to reduce global impact from
environmental damage.
248 Transboundary legal context

Table 8A.1 List of national EIA legislation and year enacted107

Country Year Enacted Country Year Enacted


Albania 1993 Luxembourg 1990
Antarctica 1991 Malaysia 1985
Argentina 1993 Mongolia 1996
Armenia 1995 Mexico 1982
Australia 1974 Netherlands 1986
Austria 1994 New Zealand 1974
Belgium 1985 Nigeria 1992
Bolivia 1994 Norway 1989
Brazil 1976 Pakistan 1983
Canada 1973 Papua New Guinea 1978
Chile 1994 Philippines 1977
China 1979 Poland 1989
Colombia 1974 Portugal 1987
Croatia 1997 Russia 1985
Czech Republic 1991 Singapore 1969
Denmark 1989 Slovakia 1991
Egypt 1994 South Africa 1982
Estonia 1992 Spain 1986
Finland 1990 Sri Lanka 1980
France 1976 Sweden 1987
Gambia 1987 Swaziland 1996
Germany 1975 Switzerland 1983
Ghana 1999 Syria 2002
Greece 1986 Tanzania 1997
Hungary 1993 Taiwan 1979
Iceland 1995 Thailand 1984
India 1986 Turkey 1988
Indonesia 1982 Tunisia 1991
Ireland 1988 Uganda 1995
Israel 1982 United Kingdom 1988
Italy 1988 United States of America 1969
Japan 1972 Vietnam 1994
Jordan 1999 Yemen 1995
Korea, South 1977 Zimbabwe 1994
Kuwait 1980
Lao PDR 1991
Lebanon 2002
Lesotho 2001
Lithuania 1992

107 Source: individual country websites and various online fact sheets. Dates

show year statute initially enacted and may not represent later amendments.
Especially useful resources include: World Bank Publications: http://web.world-
bank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXT
EAPREGTOPENVIRONMENT/0,,contentMDK:20438708~menuPK:502915~p
agePK:34004173~piPK:34003707~theSitePK:502886,00.html; and http://home-
pages.ge.ucl.ac.uk/~mhaklay/eiaworld.htm; See also Wood (2003).
Environmental impact assessments: using customary law 249

Table 8A.2 List of treaties and declarations containing EIA provisions108

NAME OF TREATY YEAR TREATY OR


DECLARATION
Convention of Biological Diversity 1993 TREATY
United Nations Convention on EIA in a 1991 TREATY
Transboundary Context (ESPOO)
Convention on the Control of Transboundary 1989 TREATY
Movements of Hazardous Wastes and their
Disposal
Convention on Long-Range Transboundary 1979 TREATY
Air Pollution
Convention for the Protection of the Natural 1986 TREATY
Resources and Environment of the South
Pacific Region
Convention on the Protection and Development 1983 TREATY
of the Marine Environment of the Wider
Caribbean Region
Regional Convention for the Conservation 1982 TREATY
of the Red Sea and Gulf of Aden Environment
Convention for Co-operation in the Protection 1981 TREATY
and Development of the Marine and Coastal
Environment of the West and Central African
Region
Kuwait Regional Convention for Co-operation 1978 TREATY
on the Protection of the Marine Environment
from Pollution
Rio Declaration on Environment and 1992 DECLARATION
Development
United Nations Convention on the Law of 1997 TREATY
the Non-Navigational Uses of International
Watercourses
World Charter for Nature 1982 DECLARATION
UNEP Principles on Shared Natural Resources 1978 DECLARATION
Agreement of the Association of South-East 1985 TREATY
Asian Nations (ASEAN) on Conservation of
Nature and Natural Resources
United Nations Convention on the Law of the 1982 TREATY
Sea

108 See Eckstein (1995), and also Preiss (1999, at fn 69), and also CIESIN data-

base: http://sedac.ciesin.org/entri/.
250 Transboundary legal context

Table 8A.2 (continued)

NAME OF TREATY YEAR TREATY OR


DECLARATION
Protocol on Environmental Protection of the 1991 TREATY
Antarctic Treaty
The United Nations Convention on the 1992 TREATY
Protection and Use of Transboundary
Watercourses and International Lakes
Convention for the Protection of the Marine 1976 TREATY
Environmental and the Coastal Region of the
Mediterranean
Protocol on Strategic Environmental 1991 TREATY
Assessment
Convention on the Transboundary Eects of 1992 TREATY
Industrial Accidents
Convention on the Law of the Non-navigational 1997 TREATY
Uses of International Watercourses
Convention for Co-Operation in the Protection 1981 TREATY
and Development of the Marine and Coastal
Environment of the West and Central African
Region
Convention for the Protection and Development 1983 TREATY
of the Marine Environment of the Wider
Caribbean Region
Convention for the Protection of the Marine 1981 TREATY
Environment and Coastal Area of the South-
East Pacific
Convention for the Protection of the Natural 1986 TREATY
Resources and Environment of the South Pacific
Region
Protocol concerning Marine Pollution Resulting 1989 TREATY
from Exploration and Exploitation of the
Continental Shelf
The Convention on the Protection of the Marine 1992 TREATY
Environment of the Baltic Sea Area
Environmental impact assessments: using customary law 251

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.
9. Transboundary environmental
crimes: an analysis of Chinese and
European law
Thomas Richter

1 INTRODUCTION

Transnational crime is not a new phenomenon of modern times. Historic


examples refer to piracy, slavery and (opium) smuggling.1 However, the eld
of cross-border criminal activities seems to have broadened over the cen-
turies and especially in the last decades. In 1994, the United Nations dened
18 categories of transnational crimes, including environmental crimes.2
Usually, transnational crimes are dened as an activity that is considered a
criminal oence by at least two countries.3 As we will see later, in the case of
environmental oences, it might be sucient that at least in one country the
activities damaging the environment are regarded as criminal acts.
Transboundary environmental damages are injuries which are caused
within the territory of one country or province and which have damaging
eects within the territory of another country or province. Pollution is
sometimes transported even by nature itself, for example, wind, rivers or
groundwater. Some threats are global, such as emission of certain gases
destroying the ozone layer or (co-)producing global warming. Global envi-
ronmental damage is not as new as we often think. For instance, the atmos-
pheric testing of nuclear weapons reached its highest level in the 1950s. Fear
of radioactive fallout became the most prominent international environ-
mental issue after World War II.4
Environmental protection is usually divided into a section of protection
of natural resources and another section of prevention and control of pol-
lution. As natural resources tend to be non-moving, certainly with the

1 Felsen and Kalaitzidis (2005, pp. 7 et seq.).


2 Felsen and Kalaitzidis (2005, p. 17).
3 Bossard (1990, p. 5).
4 Michalowski and Bitten (2005, p. 147).

253
254 Transboundary legal context

exception of migratory animals, it is pollution which is likely to be the focus


of transboundary environmental damage.
This chapter will give a comparative overview of the European and the
Chinese5 legal approach to dealing with transboundary environmental
crimes.

2 EUROPEAN LAW

2.1 Braiding between national and international law

Compared to the Chinese territory, the whole surface of Europe is smaller,


though Europe is considered a whole continent. But Europe is far from
being a homogenous legal space. National borders still exist even within the
EU. As all EU members are parties of the Council of Europe, there is much
overlap in regulation which sometimes leads to the rsum of a European
legislative chaos.6

2.1.1 Council of Europe level


Founded in 1949, the Council of Europe is an international organization
whose aim is to achieve a greater unity between its members. Its core is
the European Convention on Human Rights of 1950. As of the end of
2006, the Council of Europe has 46 Member States; Montenegro will be
the 47th member soon.7 All Member States of the EU are members of
the Council of Europe at the same time, but the EU itself is not a
member.
The Council of Europe has no supranational powers. The 1998
Convention on the Protection of Environment through Criminal Law8 is a
typical multilateral convention. It only addresses the signatory states and
therefore is not directly binding for natural or legal persons. The
Convention denes intentional (Article 2) and negligent oences (Article 3)
of which some have to do with transboundary actions, i.e. the unlawful
export or import of hazardous waste (Article 2 para. 1c), and the unlawful
export or import of nuclear materials (Article 2 para. 1e). Signatory states
have to dene these activities as criminal oences.

5 The notion of China in this report usually refers to the Peoples Republic of

China (PRC). Chinese Law in that context does not include the law of the Special
Administrative Regions of Hongkong or Macao.
6 Perron (2005, p. 14).
7 Neue Zrcher Zeitung of 18 April 2007.
8 CETS No. 172.
Transboundary environmental crimes 255

The Convention is open for signature by the Member States and the non-
Member States which have participated in its elaboration9 and after a
special procedure even for accession by other non-Member States.
However, as of beginning of 2007, the Convention is still not in force.10

2.1.2 EU level
As of January 1 2007, the European Union has 27 Member States.
As the European Constitution is still waiting to enter into force after the
refused referenda in France and the Netherlands in 2005, the competences
of the European Union on criminal law remain weak. Harmonization is
possible under the so-called Third Pillar, i.e. cooperation in the elds of
justice and home aairs, within the framework of traditional international
law. However, the inuence of EU criminal law initiatives is increasing even
for European non-EU countries, such as Norway.11
Article 174 of the Treaty establishing the European Community (EC
Treaty) asks for a high level of protection of the environment (through its
environmental policy). Therefore the Community wants to respond to
environmental crimes as well, as the EC discovered that there are great
dierences between the Member States.12

2.1.2.1 Harmonisation of criminal law A rst attempt of the Council


to ght serious misbehaviour against the environment13 was stopped in
2005 by the European Court of Justice on account of the issue of compe-
tences.14
In February 2007, the Commission presented a new draft for a range of
green crimes on the basis of Article 175 EC Treaty.15 The European
Commission believes that the factors encouraging the growth of environ-
mental crime, i.e. stringent legislation on the protection of the environment
and the growth of international and intra-Community trade, will continue

9 This refers to Canada.


10 As of 26 August 2007 only Estonia had ratied the Convention whereas
Article 13(3) of the Convention asks for three ratications to make the Convention
enter into force.
11 Strandbakken (2005, p. 2).
12 Accompanying document to the proposal for a Directive of the European

Parliament and of the Council on the protection of the environment through crim-
inal law (COM (2007) 51 nal SEC (2007) 161, English Version), p. 14.
13 Framework decision of 27 January 2003 (2003/80/JI) (Article 34 para. 2

TEU).
14 Decision of the European Court of Justice of 13 September 2005 (C-176/03).
15 Proposal of 9 February 2007 for a Directive of the European Parliament and

of the Council on the protection of the environment through criminal law.


256 Transboundary legal context

to exist.16 In a study on organized environmental crime, 71 per cent of the


researched cases had cross-border implications.17
Although being part of a long European development, the criminal law
systems are still not considered as Community matter, but are respected
as national law systems which are strongly inuenced by the respective
values of society and traditions in each Member State.18 A Communitys
criminal law system is considered going beyond the necessary and dis-
proportionate.
The draft directive which needs to be backed by a qualied majority of
Member States and a vote in the European Parliament proposes nes and
jail terms for nine oences. As far as cross-border acts are concerned, the
draft of the European Commission comes much closer to the 1998
Convention of the Council of Europe.19
Some of the proposed environmental oences are clearly of a trans-
boundary nature, such as the unlawful export or import of hazardous waste
(Article 3(c) Directive Proposal), or the unlawful export or import of
nuclear materials, other hazardous radioactive substances or hazardous
chemicals (Article 3(f) Directive Proposal).
Other oences have the potential to have cross-border impact, such as:

the unlawful discharge, emission or introduction of a quantity of


materials or ionizing radiation into air, soil or water, which causes or
is likely to cause death or serious injury to any person or substantial
damage to the quality of air, soil, water, animals or plants (Article
3(b) Directive Proposal);
the unlawful operation of a plant in which a dangerous activity is
carried out or in which dangerous substances or preparations are
stored or used and which, outside the plant, causes or is likely to
cause death or serious injury to any person or substantial damage to
the quality of air, soil, water, animals or plants (Article 3(d) Directive
Proposal); or

16 Accompanying document to the proposal for a Directive of the European

Parliament and of the Council on the protection of the environment through crim-
inal law (COM (2007) 51 nal SEC (2007) 161, English Version), p. 22.
17 Accompanying document to the proposal for a Directive of the European

Parliament and of the Council on the protection of the environment through crim-
inal law (COM (2007) 51 nal SEC (2007) 161, English Version), p. 19.
18 Accompanying document to the proposal for a Directive of the European

Parliament and of the Council on the protection of the environment through crim-
inal law (COM (2007) 51 nal SEC (2007) 161, English Version), p. 24.
19 See above, section 2.1.1.
Transboundary environmental crimes 257

the unlawful possession, taking, damaging, killing or trading of or in


specimens of protected wild fauna and ora species or parts or deriv-
atives thereof (Article 3(g) Directive Proposal).

2.1.2.2 European arrest warrant On 13 June 2002 the Council of the EU


adopted a Framework Decision on the European Arrest Warrant (EAW)
and Surrender Procedures between Member States of the EU. The
Framework Decision is to be implemented by all current and future
members of the EU in their respective legal systems.20 This new surrender
system replaces the system of extradition between Member States, trying
to considerably accelerate the extradition procedure on the basis of mutual
recognition.
Among the oences for which an EAW can be issued according to Article
2 of the Framework Decision, we can nd:

environmental crimes, including illicit tracking in endangered animal species


and in endangered plant species and varieties,

i.e. in case of transboundary crimes against the environment, surrender is


possible even without verication of the double criminality. Nevertheless,
the oence must be severe enough with a punishment in the issuing
Member State by a custodial sentence or a detention order for a maximum
period of at least three years.

2.1.3 Interim result


On the European level, at present, no binding regulations on the protection
of the environment through criminal law exist. The 1998 Convention of the
Council of Europe has not yet entered into force and, on the EU level, after
the annulation of the Framework Decision by the European Court of
Justice in 2005, the European Commission published a new proposal in
February 2007. Therefore, criminal oences against the environment are
dealt with only on the national level so far. Only the EAW might attenuate
the need for harmonization on the EU level if implementation of the
Framework Decision is completed in the Member States, as environmental

20 In Germany, the law of 21 July 2004 implementing the EAW was declared

null and void by the judgment of the Federal Constitutional Court on 18 July 2005
which criticized that the (national) law was disproportionate especially in the eld
of surrender of own (German) citizens to other Member States. A new attempt to
implement the EAW was undertaken on 20 July 2006 by the German Parliament
trying to meet the requirements of the Federal Constitutional Court.
258 Transboundary legal context

crimes belong to the categories of oences for which the EAW can be
issued.

2.1.4 National level Germany21


Lying in central Europe, Germany is a member of the Council of Europe
since 1950 and a founding member of the EC. It is surrounded by eight EC
Member States plus Switzerland. Germany has signed the Convention of
the Council of Europe already in 1998, but with many others has still
not ratied it.
Since its enactment in 1871, the German Penal Code (GPC) has seen
many modications, but is still devoted to former structures and principles.
One of these special features of German criminal law is that it refers to
natural persons only and does not acknowledge the criminal liability of
legal persons. Therefore, the liability of legal persons is limited to adminis-
trative (and civil) law.
In 1980, Germany introduced a new chapter on environmental crimes in
its Penal Code (Chapter 29) which was revised again in 1994 after broad
scientic research and discussions especially in the 1980s. The oences are
dened in a very generalized way trying to protect the dierent environ-
mental media. Transboundary activities do not play a major role in the
denition of these oences. An exception is Article 326 para. 2 which penal-
izes the import, export and passage in transit of specically dangerous
waste materials and Article 328 para. 1 GPC punishing the unlawful import
or export of radioactive materials.
Much more important for cross-border issues are the general principles
on the scope of application of the Code, i.e. Articles 3 to 7 GPC. A leading
principle is the Principle of Territoriality, while other principles might be
applied for certain dened issues.22 Article 3 GPC denes the jurisdiction
of German Criminal law to all acts having been committed in Germany.
Article 9 para. 1 GPC gives more details saying that:

A crime is deemed to be committed not only at the place where the perpetrator
acts, but also at the place where the proscribed eect of a crime occurs.

With this denition it is clear that there might be two dierent places
for the commitment of an oence, even the possibility of two dierent
countries or provinces. Depending on the oence, the commitment will be

21 For several substantive and practical reasons, German law was chosen as an

example.
22 Schnke and Schrder (2001), sidenote 11 to preliminary remarks for

Articles 3 to 7.
Transboundary environmental crimes 259

usually an injury (Verletzung), but might be mere endangerments


(konkrete Gefhrdung) of certain interests as well. As far as environmen-
tal crimes are concerned, however, most of oences found in Articles 324
et seq. GPC provide punishment for their abstract potential of danger.23 In
this case, it is dicult if not impossible to locate a place where the pro-
scribed eect of the crime occurs.24
One particular problem emerges from the fact that environmental
oences usually depend on administrative (environmental) law. In case of
such interdependency, the question arises which (administrative) law is to
be applied in transnational conicts? The rst question is if a public pros-
ecutor or judge can or even must take into account foreign administra-
tive law.25 If the answer does not lead to the total rejection of foreign law,
further questions follow. If there is a valid permission for pollution in the
state where the pollution is produced, does the state where the pollution
shows its impact have to tolerate the permission with the consequence of
impunity? What if the actor does not have written or oral permission, but
his or her action is allowed? It is evident that there are concurring interests.
On the one side the respect of sovereignty due to the State of the place of
action, on the other side the national interests and the national sovereignty
of the State where the eects of the action take place. Any solution of these
issues has to take into account the relevant statutes of the countries con-
cerned and, in addition, international law. Most important are the princi-
ples of sovereignty with the prohibition of foreign intrusion in domestic
aairs. As an exception, international law allows, encourages or even
obliges the protection of environmental media even beyond the own
borders, for instance in the case of transboundary movement of waste.26
In Germany, the beginning of academic research on transboundary envir-
onmental crimes27 lies in the period when the protection of the environment
was still considered as a major new eld of politics. Even the instrument of
criminal law should be used for this goal. The rst opinions had the tendency
to nd extensive application of the German Penal Code. Nowadays, the
former opinion is considered too extensive28 and consensus in German law
theory might be found as follows. Generally speaking, two main scenarios can

23 Kloepfer and Vierhaus (2002, p. 142): Abstrakte Gefhrdungsdelikte.


24 Gnther-Nicolay (2003, p. 376); Satzger (1998, p. 115).
25 Basic analysis of this question by Cornils (1978, pp. 91 et seq.).
26 Gnther-Nicolay (2003, p. 369).
27 Actually, the criminal prosecution of transboundary environmental crimes is

more a theoretical, than practical problem, as governments tend to nd solutions


more on a political level. Cf. Wimmer (1991, p. 149).
28 Gnther-Nicolay (2003, p. 376); Wimmer (1991, p. 150).
260 Transboundary legal context

X
X

B
A

Figure 9.1 Pollution permitted according to environmental regulations of


Country A (shaded area)

X
X

B
A

Figure 9.2 Unlawful pollution according to environmental regulations of


Country A (shaded area)

be distinguished. In the rst scenario (Figure 9.1), the commitment which has
transboundary polluting eects, does not violate environmental regulations
of its own country (country A). In the second scenario (Figure 9.2), the act is
even unlawful (but not necessarily criminal) in its own country (country A).
In the rst scenario, country B (Germany) has, in principle, to accept the
pollution produced abroad, although the Act of State Doctrine which says
States do not have the right to review a foreign act of state, is not accepted
in Germany.29 International law (used in a very broad sense, more in the

29 Cf. BVerwGE 75, 257 f.; BGH DVBl. 79, 227; Martin (1989, pp. 290 et seq.,

306 et seq.).
Transboundary environmental crimes 261

sense of international public law) leaves discretion to the state where the
eect takes place to respect or not the state acts of the state where the action
takes place (country A).30 The conformity with the environmental regula-
tions of country A for instance through a permission31 justies perpe-
trating the pollution, as long as these regulations do not obviously violate
international law.32 This result is due to the so-called principle of restrained
sovereignty and integrity of states in the eld of environmental pollution,33
the limited scope of application of German administrative law and the
principle of nullum crimen sine lege (Bestimmtheitsgebot). Criminal law
wants to inuence the behaviour of people. However, it seems to be almost
impossible to steer a potential perpetrator in another country, especially if
the own country allows this behaviour.34 Therefore, even if it would be
desirable, the pollution cannot be punished by German criminal law.
In the second scenario, the environmental degradation is not permitted
in country A. Therefore, the act can be punished in country B as criminal
oence, even if the transboundary environmental damage lies within the
level accepted by international law.35 However, the issue of double jeopardy
(ne bis in idem) has to be taken into account and, as for Europe, legal har-
monization could be a possible method to nd adequate solutions both
for the victim states and for the oenders.
The assessment of oences which require negligence or recklessness
follows the scheme of what was said for oences with intention. Here, the
standard of care of the place of action should be applied, if the pollution
has to be tolerated according to international (environmental) law even if
the standard of care is higher in the place of eect.36
As a result, German criminal law follows the administrative decisions
taken by the foreign state, as long as they do not violate international law.
The principle of universality is relevant only in the case of oences of
(nuclear) radiation according to Articles 307, 309, 310 para. 1, Articles 311
and 312 with Article 6 para. 1 GPC. Theoretically, German law is applica-
ble for those activities irrespective of the place where they are committed.
However, the principle of mandatory prosecution is not applied in cases of

30 Martin (1989, p. 331) with more references.


31 The former distinction between permissions, i.e. foreign acts of administra-
tion which should be respected and other forms of acceptance without direct refer-
ence of criminal law to domestic administrative law (Martin, pp. 290 et seq, 306
et seq), seems not to nd any support any more.
32 Cf. Wimmer (1991, p. 149); Martin (1989, pp. 329 et seq).
33 Wimmer (1991, p. 149).
34 Gnther-Nicolay (2003, p. 417).
35 Martin (1989, p. 316).
36 Martin (1989, p. 338 f.).
262 Transboundary legal context

crimes committed abroad according to Article 153c of the German Code


of Criminal Procedure. Therefore, the German public prosecutor has a
wide range of discretion to sue such crimes or not.

3 CHINESE LAW

3.1 Economic rise

Once political power could implement the policy of the Four Moderniza-
tions37 at the end of the 1970s, China underwent an unprecedented eco-
nomic rise. The country saw its GDP rising from 365 billion yuan in 1978
to 9920 billion yuan in 2000 and around 18,300 billion yuan in 2005.38 If
we can trust the statistics, this means that the Chinese GDP of 2005 is about
50 times bigger than it was in 1978. Since the 1990s China has been
regarded as a world factory. From 2001 to 2005 the value of total exports
from China almost tripled.39
The growing pollution of the atmosphere, water and soil is linked to
rapid industrial development. A lot of the pollution generated by China
stays within the borders, but much pollution is exported, especially to
neighbouring countries such as Korea, Japan or Russia.

3.2 Criminal law

Having enacted a rst Criminal Code and Criminal Procedure Code as one
of the earliest laws after the so-called Cultural Revolution, the second half
of the 1990s saw an important revision of both laws. The revised Chinese
Penal Law of 1997 (CPL) established a new (sub-) chapter for Oences
of Undermining Protection of Environmental Resources.40 The eld
of application of these oences is much less broad than the
German oences. The focus is laid on Oences of damaging natural
resources ( ), Articles 340 to 345 CPL.41 The protected natural
resources are: aquatic products, wild animals and their manufactured prod-
ucts, trees and forests, farmland and mineral resources.

37 : Modernization of Agriculture, Industry, Defence, Science and


Technique.
38 China Statistical Yearbook (2006, p. 57).
39 From 2.661 trillion to 7.62 trillion US$, China Statistical Yearbook (2006,

p. 733).
40 Richter (2002, pp. 78 et seq.).
41 Richter (2002, p. 136).
Transboundary environmental crimes 263

3.3 Transboundary damages

These scenarios are not to be seen as a complete list of cross-border activ-


ities leading to environmental damage, but are selected on an empirical
approach.

3.3.1 Atmospheric, water or radioactive pollution

3.3.1.1 General outline As China is a huge country, most of its pollution


remains within its own borders. However, on account of the jet stream,
Korea and Japan particularly, but also Taiwan, suer from the atmospheric
pollution produced in mainland China and this can sometimes result in
acid rain and other damage in these areas. Water pollution is another
important concern not only in the bigger and smaller rivers, but also in the
seas they feed, including the Bohai Sea, the Yellow Sea, the East China Sea
and the South China Sea. The ambient water quality is far from being good
in the whole area (see Figure 9.3).
Concerning radioactive pollution, so far no dramatic accident has been
reported from China. As at the beginning of 2007, China had nine nuclear
power reactors in commercial operation. The growing energy market
demands a steady extension of the energy supply. Therefore, a further two
units are grid connected or well advanced in construction, and four more
are under construction. Additional reactors are planned, including some of
the worlds most advanced, to give a ve-fold increase in nuclear capacity
to 40 GWe by 2020.42 The mere multiplication of nuclear reactors makes
dangerous incidents more probable.
There is one single oence in the revised Chinese Penal Law dealing
with such pollution: Article 338, the so-called major environment pollu-
tion accident43

Article 338: Whoever releases, dumps, or disposes of radioactive wastes, wastes


containing pathogen of contagious diseases, and toxic materials or other dan-
gerous wastes into land, water, and the atmosphere in violation of state stipula-
tions, causing major environment pollution accidents, heavy losses to public and
private property, or grave consequences of personal deaths and injuries shall be
sentenced to not more than three years of xed-term imprisonment or criminal
detention, and may in addition or exclusively be sentenced to a ne; and in

42 World Nuclear Association, at http://www.world-nuclear.org/info/inf63.html

as of 20 April 2007.
43 Article 338 CPL is regarded as one of few so called Pollution oences

( ), while the majority of environmental oences are regarded as


Oences of damaging natural resources ( ).
264 Transboundary legal context

21%
Heavily Polluted Area

42%
Relatively Clean Area
Moderately
Polluted Area
13%

24%
Lightly Polluted Area

Source: China Statistical Yearbook 2006, p. 418.

Figure 9.3 Ambient sea water quality

exceptionally serious consequences, not less than three years and not more than
seven years of xed-term imprisonment, and a ne.

This oence demands the result of a major environment pollution accident,


i.e. heavy losses to property, or grave consequences of personal deaths and
injuries. The wording does not tell us if the damages have to be within the
Chinese territory or beyond. Here, the general principles on the scope of
application of the Criminal Law do apply. These principles are laid down
in the General Provisions, Articles 6 to 11 CPL.44
The most important principle is again the principle of territoriality in
Article 6 CPL stating that Chinese Law is, in general, applied when the
crime has been committed within the territory of the Peoples Republic of
China (PRC). Article 6 para. 2 extends the eld of application to ships or
aircraft under the ag of the PRC. Finally, Article 6 para. 3 makes clear
that the commitment of an oence compounds either the act or conse-
quence of a crime.
Therefore, in order to apply Article 338, it is sucient that either the pol-
luting acts or the damages lie within Chinese territory. Chinese law can be

44 Article 8 CPL which tries to protect China as a state and its citizens
( ), seems to be without relevance for transboundary environmental crimes.
Transboundary environmental crimes 265

applied, for instance, when toxic wastes are emitted from Chinese ships
around the world or from non-Chinese sources if the damage is sizeable,
at least within the coastal waters of the PRC.45 Nevertheless, this relatively
broad scope of application is reduced by Article 338 CPL as the require-
ments for the damage are high: property, health or life have to be injured.
A mere endangerment of these legal interests is not sucient.

3.3.1.2 Songhua River accident of November 200546 In November 2005, a


serious chemical accident occurred in the city of Jilin in north-eastern China
polluting the Songhua River for a stretch of nearly 100 kilometres with about
100 tons of benzene, nitrobenzene and aniline. The contaminated water soon
interrupted the water supply of the city of Harbin for seven days; afterwards
it polluted the water quality of the Amur River in Russia.47 It was only on
25 December 2005 that the Chinese authorities reported that the levels of
benzene and nitrobenzene in all monitored sections of the Songhua River
and Heilongjiang River met national water standards again.
The State Environment Protection Agency (SEPA) wrote in its annual
report on the State of the Environment of 2005:
On November 13, 2005, an explosion in the benzene plant, Jilin Chemical
Company of China National Petroleum Corporation triggered a major water
pollution accident in the Songhua River, which attracted great attention of the
CPC Central Committee and the State Council. Under the concerted eorts of
relevant departments under the State Council, Heilongjiang and Jilin Provincial
Governments, station troops and armed forces, pollution prevention and control
work was unfolded actively, which guaranteed the drinking water safety of resi-
dents along the Songhua River.48
The report and most other media stressed the reparation activities
and lacked almost any information on the cause of this disaster. Therefore,
legal assessment is still dicult.49 We are unclear if Article 338 CPL could

45 According to the Chinese interpretation of the United Nations Convention

on the Law of the Sea (UNCLOS) of 10 December 1982, Chinese territority extends
for 200 miles oshore, Yang and Liu (1994, p. 861).
46 Compare the other articles in this book (Part III) with dierent views on the

Songhua-River accident.
47 The River Amur is called Heilongjiang in Chinese.
48 Page 6 of the report (English Version). See p. 41 of the mentioned report as

well.
49 As a consequence of the Songhua River accident, however, the Director of

SEPA, Xie Zhenhua, who had led this organization since June 1993, stepped back
a few weeks after the accident. In a joint circular from the general oces of the
Partys Central Committee and the State Council, SEPA was criticized for having
underestimated the possible serious impact of the Songhua accident (Xinhua News
Agency of 2 December 2005).
266 Transboundary legal context

have been applied.50 Apparently, the workers who might have caused the
accident were killed by the explosion. Although some doubts were reported
on the correct behaviour of the remen who might have aggravated the con-
sequences of the accident, no criminal prosecution has been made so far.
Even if prosecution of the dead workers is no longer possible, the plant
itself could have been held criminally liable according to Articles 30, 31, 346
CPL and been ned.
As far as the reaction of Russian administration is concerned, no
attempts to bring a criminal prosecution have been reported.

3.3.2 Solid waste import and export


Recent decades have led to an acceleration in the consumption of goods.
The industrialized countries especially have become so-called throw-
away societies. The cost of getting rid of waste material in industrialized
countries is high, therefore a global market has developed often in the
direction of poor countries who import the waste to the detriment of the
local population and the environment. The 1989 Basel Convention
on the Control of Transboundary Movement of Hazardous Waste
and Other Waste and Their Disposal tries to control this global develop-
ment.
Article 9 CPL refers to international conventions to which the PRC is
bound, such as the 1973 Washington Convention on International Trade in
Endangered Species of Fauna and Flora (CITES), the 1987 Montreal
Protocol on Substances that Deplete the Ozone layer or the 1989 Basel
Convention on the Control of Transboundary Movement of Hazardous
Waste and Other Waste and Their Disposal. However, this article remains
a mere repetition of theoretical principles, if the Convention itself does not
entirely and clearly dene crime and punishment. According to the princi-
ple of rule of law, criminal law needs strict regulations: Nullum crimen sine
lege.51 In general, international conventions leave a framework to signatory
states for criminal oences and are not self-executing.
For instance, CITES asks the parties only to take appropriate measures
and to penalize trade in, or possession of, such specimens, or both.52
Article 4 of the Basel Convention at least asks the states to criminalize
the illegal trac:

50 Some protected wild animals, such as sturgeon and huso, were killed in the

accident as well. However, the killing was certainly without intention, so that Article
341 para. 1 CPL was not applicable.
51 This principle has been ocially accepted in Article 3 CPL.
52 Article VIII (1) (a) with Article I (b) CITES.
Transboundary environmental crimes 267

3. The Parties consider that illegal trac in hazardous wastes or other wastes is
criminal.
4. Each Party shall take appropriate legal, administrative and other measures to
implement and enforce the provisions of this Convention, including measures to
prevent and punish conduct in contravention of the Convention.

Therefore, these Conventions have to be transformed into national law.


But, once the Convention is transformed into criminal legislation, this
national provision can and must be applied directly and Article 9 CPL is no
longer needed.
Within the Specic Provisions in Chinese Penal Law, at least one of them
has to do with cross-border activities, i.e. the arbitrary import of waste
material in Article 339 para. 2 CPL. Arbitrary in this context means import
without the permission of the competent Chinese authorities. Therefore,
the oence itself claries that a Chinese import licence has to be given
independent of the nationality of the importer; an export licence from
another country will not be sucient to allow the import of waste mater-
ial into China. The case of the US businessman William P. Chen was
reported in the 1990s; he was punished by the Shanghai Intermediate Court
with 10 years imprisonment and a ne of 500,000 yuan for illegal import
of large volumes of hazardous waste.53
It should be noted that the (illegal) export of waste material is not
included within the Oences of Undermining Protection of Environmental
Resources and therefore the latter seems not to be in line with the Basel
Convention.54

3.3.3 Tracking in endangered species


Another oence with potential for cross-border activity is the illegal
tracking of endangered species of fauna and ora. Besides Article 341,
para. 1 CPL as the oence of Undermining Protection of Environmental
Resources, there is the oence of smuggling of precious animals and their
products or with precious and rare plants and their products according to
Article 151 para. 2 to 4 CPL within the Chapter of violation of the Socialist
Market Economy. Whereas the latter oence tries to protect fauna and
ora, Article 341 CPL focuses on animals only.
Another approach to penalizing cross-border activities in that eld might
be the principle of (active) personality ( ). This principle means
that Chinese citizens are held criminally liable wherever they commit an
oence. Article 7 CPL is without restriction. Only Chinese citizens who are

53 Cf. Bie Tao (2001, p. 159).


54 With dissenting opinion Bie Tao (2001, p. 159).
268 Transboundary legal context

neither civil servants nor soldiers of the Peoples Liberation Army might be
exempted from criminal prosecution in cases of certain minor oences.
Therefore, Chinese citizens who trac in endangered species commit the
oence of Article 341 CPL independently of the place or country where
they act. Even beyond neighbouring countries these people commit crimes
according to Chinese criminal law.
One issue of conict might lay in the denition of protected wild animals.
The protection of wild animals follows the Washington Convention of
1973.55 Hunting or killing of protected animals, as well as the purchase,
transport or selling of their products is strictly prohibited. In special cases,
exemptions are possible after having received the permission of the compe-
tent authority.56 According to the need of safeguard, protected animals are
divided into two categories. Whereas for the category of the most protected
animals, it is the central government which is responsible for the permission,
for the second category, the governments on provincial level make these deci-
sions. Therefore, there might be a transboundary conict on provincial level,
especially when a vendor of animal products of the second category who
received the permission of his province A tries to sell to a buyer in province
B. The (until now more theoretical) question is if the permission of province
A exempts related people of other provinces from criminal liability too.

4 SUMMARY/CONCLUSION

The European law is at present not prepared to ght transboundary envir-


onmental pollution through criminal law, neither on the EU level nor on
the level of the Council of Europe. Only the EAW may attenuate the need
for harmonization on the EU level, as severe environmental crimes belong
to the list of oences for which the EAW can be issued even without verifi-
cation of the double criminality of the act.
German law has broad denitions of environmental crimes with few
direct references to transboundary damages. The leading principle for
cross-border environmental damage is the principle of territoriality which
is able to punish environmental damages produced in foreign countries but
having domestic consequences. The interdependence of environmental
crimes and administrative law makes it necessary to nd solutions which
are compatible with international law.

55Richter (2002, p. 106).


56More generally to the problem of interdependency between environmental
criminal law and environmental administrative law in China, cf. Richter (2006,
pp. 72 et seq).
Transboundary environmental crimes 269

It is interesting that whereas at the national level (e.g. Germany) there is


less and less hope in criminal law as a suitable instrument to ght environ-
mental damage, on the international and supranational level (Council of
Europe, EU), there is a tendency to stress criminal law for environmental
protection.
The jurisdiction of Chinese criminal law is extremely broad, unifying
dierent approaches to make Chinese criminal law applicable. For this
reason, the scope would be broad enough to ght cross-border criminal
activities, but the oences under sub-chapter Oences of Undermining
Protection of Environmental Resources focus on oences damaging
natural resources and, besides that, puts the level of damaging eects very
high in the case of Article 338 CPL, the so-called major environment pol-
lution accident. Therefore, the cross-border element is without importance
regarding the solution of ghting environmental damages through crimi-
nal law. However, if there is need for action, it is within the more general
problem of the sub-chapter of Oences of Undermining Protection of
Environmental Resources.
Accidents like the one in Songhua in November 2005, or in Basel in
November 1986, tend to be promoters of new developments in techniques,
but also in legislation. However, the Jilin accident had not only environ-
mental consequences but also consequences for the economy and even pol-
itics. It cannot be cited as transnational organized crime,57 but was rather
disorganized. The state authorities focused on reparation activities, but
might have missed the chance of (at least, publicly) searching for the
reasons of such an accident.

REFERENCES

Bie Tao (2001), Implementation of the Basel Convention in China, in Tao


Zhenghua and Wolfrum, R. (eds), Implementing International Environmental
Law in Germany and China, The Hague: Kluwer Law International, 159162.
Bossard, A. (1990), Transnational Crime and Criminal Law, Chicago: Oce of
Internatinal Criminal Justice, University of Illinois at Chicago.
Cornils, K. (1978), Die Fremdrechtsanwendung im Strafrecht, Berlin: de Gruyter.
Felsen, D. and Kalaitzidis, A. (2005), A Historical Overview of Transnational
Crime, in P.L. Reichel (ed.), Handbook of Transnational Crime & Justice,
London/New Delhi: Thousand Oaks, 319.
Gnther-Nicolay, E. (2003), Die Erfassung von Umweltstraftaten mit Auslandsbezug
durch das deutsche Umweltstrafrecht gem 324 . StGB, Baden-Baden:
Nomos.

57 Cf. Felsen and Kalaitzidis (2005, p. 6).


270 Transboundary legal context

Kloepfer, M. and Vierhaus, H.-P. (2002), Umweltstrafrecht, 2nd edn, Mnchen:


Beck.
Martin, J. (1989), Strafbarkeit grenzberschreitender Umweltbeeintrchtigungen
zugleich ein Beitrag zur Gefhrdungsdogmatik und zum Umweltvlkerrecht.
Freiburg i. Br.: Max-Planck-Institut fr auslndisches und internationales
Strafrecht.
Michalowski, R. and Bitten, K. (2005), Transnational Environmental Crime, in
Reichel P.L. (ed.), Handbook of Transnational Crime & Justice, London/New
Delhi: Thousand Oaks, 139159.
Perron, W. (2005), Perspectives of the Harmonization of Criminal Law and
Criminal Procedure in the European Union, in Husab, E.J. and Strandbakken
A. (eds), Harmonization of Criminal Law in Europe, Antwerp: Intersentia, 522.
Richter, Th. (2002), Umweltstrafrecht in der Volksrepublik China, Freiburg i.Br.:
Edition Iuscrim.
Richter, Th. (2006), Interdependencies between Criminal Law and Oil Pollution
Regulation in China, in Faure, M. and Hu, J. (eds), Prevention and Compensation
of Marine Pollution Damage. Recent Developments in Europe, China and the US,
Alphen a.d. Rijn u.a.: Kluwer Law International, 6181.
Satzger, H. (1998), Die Anwendung des deutschen Strafrechts auf grenzberschre-
itende Gefhrdungsdelikte, NStZ, 112117.
Schnke, A. and Schrder, H. (2001), Strafgesetzbuch. Kommentar, 26th edn,
Munich: Beck.
Strandbakken, A. (2005), Introduction, in Husab, E.J. and Strandbakken, A.
(eds), Harmonization of Criminal Law in Europe, Antwerp: Intersentia, 13.
Wimmer, K. (1991), Die Strafbarkeit grenzberschreitender
Umweltbeeintrchtigungen. Zugleich eine Besprechung der gleichnamigen
Dissertation von Jrg Martin, Zeitschrift fr Wasserrecht (ZfW), 141150.
Yang Ch. and Liu Sh. (1994), Chinas Treatment of Crimes Against the
Environment, Revue Internationale de Droit Pnal/International Review of Penal
Law, 65, 849863.
PART III

The Songhua River Pollution Case


10. Reections from the
transboundary pollution of
Songhua River
Wang Jin, Huang Chiachen and Yan Houfu

1 INTRODUCTION

The Songhua River, the third largest river in China, joins the Heilong
River after owing through Harbin City and forms a natural border with
the Russian Federation. The river continues into Russia and is then
named the Amur River. The Amur River ows through Khabarovsk City,
of which the population is approximately 600,000, into the Bering Strait.
The Songhua River, the Heilong River and the Amur River are together
the main water supply for the cities and regions situated along those
rivers.
On 13 November 2005, an explosion accidentally occurred at a petro-
chemical plant owned by PetroChina Cooperation (PetroChina), which
was located in Jilin City, in the Jilin Province, China. The accident was
caused by an operational fault. After the accident occurred, heavy smoke
and dust was emitted into the sky above Jilin City. To prevent and to reduce
the amount of air pollution above and around Jilin City, the competent
authorities of Jilin Provincial Government used large amounts of water to
clean the explosion site. During the cleaning, the water was used to wash
o the explosion site and the residue. It was estimated that 100 tons of toxic
substances, made up of a mixture of benzene and nitrobenzene, was spilled
into the upper stream of the Songhua River. The contaminants in the
surface water highly exceeded the water safety standards permissible in
China.
On 22 November 2005, the Chinese Government informed the Russian
Government of the incident that had occurred in the Songhua River (the
Songhua River Pollution Incident or the Incident). On 24 November,
the contaminants arrived in Harbin City and caused the city water
supply to be cut. On 26 November, the Chinese Government

273
274 The Songhua River pollution case

informed the United Nations Environmental Programme (UNEP) of the


Incident.1
On 4 December, the Chinese Prime Minister, Wen Jiabao, wrote a letter
to the then Russian Prime Minister, Mikhail Fradkov. In the letter, Prime
Minister Wen laid emphasis on the fact that the Chinese and Russian
people drink water from same river. Therefore, protection of this trans-
boundary water resource is the most signicant matter for the health and
safety of the people of both countries. Prime Minister Wen introduced
the measures that had been adopted and that were being adopted by the
Chinese Government, expressed the Chinese Governments view on
being responsible for the Incident, and reiterated the wish to strengthen
cooperation with Russia in order to limit the consequences of the
disaster.2
On 19 December the contaminants arrived in the Heilong River (i.e. the
Amur River in Russia) on the territory of Russia, and in Khabarovsk City
on 25 December. Subsequently, the Chinese Government had promptly
informed the Russian Government of the pollution development and
worked in close cooperation with the Russian Government. In addition, the
Chinese Government strived to reduce the pollution impact on Russia as
much as possible. The Chinese Government also kept the Russian
Government informed on the updated control over the pollution.
Meanwhile, the Russian Government also took measures as a response to
the Incident. On 21 February 2006, the Chinese and Russian Governments
signed an agreement in Beijing to jointly monitor the water quality of the
cross-border rivers and lakes, including the Heilong River. In the meantime,
they also agreed to work on a contingency plan for signicant emergent
pollution incidents.3
Due to the Incident, the Chinese Government as well as many scholars
began to think about environment protection problems in China.4 After the

1 A combination of reports from the news press held by the Central

Government of the Peoples Republic of China (PRC) with respect to the


Songhua River Pollution Incident and from the other news media in PRC.
2 Report of Xinhua News on 6 December 2005; the spokesperson of the Ministry

of Foreign Aairs, Qin, Kong, informed the press conference of 6 December that the
Chinese Prime Minister Wen Jiabao had sent a letter regarding this matter to the
Russian Prime Minister Mikhail Fradkov at the time, available at
http://www.sina.com.cn, last visited on 4 May 2007.
3 China Daily, Cross-border Rivers to Be Jointly Monitored, February 22, 2006,

at http://news.xinhuanet.com/english/2006-02/22/content_4210291.htm, last visited


on 20 September 2007.
4 It was a coincidence that the 22nd Congress of the Law of the World

was held in Beijing in September 2005 just prior to the Songhua River
Reflections from the transboundary pollution 275

Incident, many victims and environmentalists led civil lawsuits and public
lawsuits for compensation against PetroChina.5 The Russian legal experts
also suggested that the Russian Government should consider claiming rea-
sonable compensation against the Chinese Government in accordance with
international law.
The main purpose of this chapter is to analyse the legal issues in the
transboundary pollution dispute arising out of the Songhua River
Pollution Incident.

Pollution Incident. The Mock Trial of the Congress was a review of a dispute with
regard to transboundary airborne pollution by the judges of the International
Court of Justice (ICJ).
The brief of the facts was as follows:
State Alpha uses pulverized coal power plants to produce power. State Beta
is a tiny and less developed neighbor to State Alpha. Pursuant to a long term agree-
ment between Alpha and Beta, Alpha supplies Beta the power for a privileged price.
State Delta is a highly developed country located thousands of miles from Alpha.
There are many lakes and streams in Delta which attracts many residents in Delta
and visitors from the world. In 2004, experts conducted a comprehensive investiga-
tion in Delta and concluded that the emissions from Alphas power plants contam-
inated not only Alphas, but also Betas and Deltas air, lakes and streams. Especially
the mercury discharged from Alphas plants through airow contaminated air, lakes
and streams in Beta and Delta, and caused sh being poisoned. Delta has adopted
very expensive measures to clean the air and water. However, the pulverized coal
power plants of Alpha reduced the eects of Deltas series of measures. On the
other hand, if Alpha closes the power plants, this will have a serious impact on its
economic growth rate. In addition, Alpha will not be able to continue the power
supply to Beta, and Beta will have to purchase power for more expensive prices. Beta
informs Alpha that if Alpha closes its power plants, Beta will claim damages against
Alpha for the dierences in power purchase prices.
The issues in that Mock Trial are as follows:
1. Whether or not Alpha would be liable for the compensation to Delta?
2. If Alpha closes its power plants due to the ICJ ruling or signicant envir-
onmental pollution, whether or not Alpha would be liable for the compensation to
Beta?
The Judges of Moot Court held that as follows:
1. Alpha should adopt reasonable measures to reduce the emission of pollu-
tants.
2. Delta should provide technology and nancial assistance within the scope
of international cooperation.
5 The Peoples Courts in every level in Jilin and Heilongjiang Province, however,

did not accept any of the filed above-mentioned lawsuits. The Courts reason was
that the pollution damage would be uniformly dealt with by the Central
Government or Provincial Governments. In addition to that, the Courts did not
issue any written rulings to the parties ling the lawsuits.
276 The Songhua River pollution case

At the beginning of this chapter, we identied four kinds of disputes,


namely (1) the dispute between the Russian Government and the Chinese
Government; (2) the dispute between the Russian Government and
PetroChina; (3) the dispute between the Incident victims in Russia and the
Chinese Government; and (4) the dispute between the Incident victims in
Russia and PetroChina.
Subsequently, we will analyse the dierent legal issues involved in each
kind of dispute. With regard to the rst kind of dispute, we will
mainly discuss the multilateral and bilateral treaties as a potential solu-
tion to solve the dispute and the procedure. With regard to the second
kind of dispute, we will mainly discuss the relationship between the acts
of state-owned enterprises and the acts of a state, and the theoretical pos-
sibility that a government, as a pollution incident victim state, claims
damages against a foreign polluter. As for the third kind of dispute, we
will mainly discuss the theoretical possibility that the victims in the pol-
luted state claim damages against the government which exercises juris-
diction over the polluter. As for the fourth kind of dispute, we will mainly
discuss the applicable national law and the procedure for the Incident
victims.
Finally, we will point out the defects of the Chinese legal system in
solving the transboundary pollution dispute and we will make suggestions
for possible solutions.

2 FOUR KINDS OF POTENTIAL DISPUTES


2.1 The Russian Government v the Chinese Government

A State should take responsibility for its own illegal acts. There are two
requirements for state responsibility: (1) the act is in contravention of the
states international obligation; and (2) the responsibility is attributable to
the acts of state.6
Traditional international law considers that a state should not be able to
take state responsibility for acts carried out by private entities. Nonetheless,
there is a common law principle of sie utere tuoalienum non laedas (i.e. do
not use your property to harm another). There is also a principle in inter-
national law that when a state uses its territory it shall not cause any harm
of interests to other states.7

6 Wang (2004, pp. 100, 108115).


7 Hunter, Salzman and Zaelke (1998, p. 345).
Reflections from the transboundary pollution 277

In the 1941 Trail Smelter Arbitration between the United States and
Canada, the arbitral tribunal made a very famous statement that under the
principles of international law, as well as of the law of the United States,
no State has the right to use or permit the use of its territory of another or
the properties or persons therein, when the case is of serious consequence
and the injury is established by clear and convincing evidence.8 This state-
ment made this case the rst judicial precedent in international law that a
state shall not cause environmental harm to another state. Some scholars
consider that the principle included in the ruling is comprehensively applic-
able in global environmental problems.9
In the 1949 Corfu Channel case, the International Court of Justice (ICJ)
also stated that it is every States obligation not to allow knowingly its ter-
ritory to be used for acts contrary to the rights of other States.10 In the
1957 Lac Lanoux Arbitration, the tribunal found that France may exercise
its rights; it may not disregarded Spanish interests. Spain may demand
respect for its rights and consideration of its interests.11
Principle 21 of the 1972 Stockholm Declaration stated that states have,
in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pur-
suant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of national
jurisdiction.12
Judge de Castro, in his dissenting opinion to the judgment of the 1974
Nuclear Test (Australia v France) case, cited the opinion of the Trail Smelter
Arbitrary Award. He stated that (i)f it is admitted as a general rule that
there is a right to demand prohibition of the emission by neighboring prop-
erties of noxious fumes, the consequence must be drawn, by an obvious
analogy, that the Applicant is entitled to ask the Court to uphold its claim
that France should put an end of deposit of radio-active fall-out on its ter-
ritory.13 In the footnote following the quotation from Trail Smelter

18 Trail Smelter Arbitration (United States v Canada), 3 U.N. Reports of

International Arbitral Awards (1938 and 1941), p. 1965.


19 Palmer (1992, p. 265).
10 Corfu Channel case, Judgment of 9 April 1949, I.C.J. Reports 1949, p. 4.
11 Lac Lanoux Arbitration (France v Spain), 12 U.N. Reports of International

Arbitral Awards (1957), 281; partial English translation of the award see Weiss et al.
(2003, p. 283).
12 Kiss (2000, p. 84).
13 Nuclear Test (Australia v France), Dissenting Opinion of Judge de Castro,

I.C.J. Reports 1974, p. 389.


278 The Songhua River pollution case

Arbitrary Award, Judge De Castro continued to state that this award marks
the abandonment of the territory of Harmon (absolute sovereignty of each
state in its territory with regard to all others).14
Principle 18 of the 1992 Rio Declaration stated that states shall imme-
diately notify other states of any natural disasters or other emergencies that
are likely to produce sudden harmful eects on the environment of those
states. Every eort shall be made by the international community to help
states so aicted.15 Article 8 of the Draft of Prevention of Transboundary
Harm from Hazardous Activities (2001 ILC Prevention Draft) adopted
by the International Law Commission (ILC) in 2001 also states that the
state of origin should provide the state likely to be aected with timely
notication of the risk and the assessment, and shall transmit to it the avail-
able technical and all other relevant information.16
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, the ICJ stated that

(t)he existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas
beyond national control is now a part of the corpus of international law relat-
ing to the environment.17

Although this statement is a little dierent from Principle 21 of the 1972


Stockholm Declaration, both of them prescribe that states have the oblig-
ation to ensure not to cause transboundary pollution harm.18
Under the above-mentioned customary international law, the Chinese
Government must ensure that the pollution originated from the entities
within its territory shall not cause harm to downstream nations. In respect
of the responsibility of the state of origin, there are dierent views in inter-
national law. Article 3 of the 2001 ILC Prevention Draft stated that

[t]he state of origin shall take all appropriate measures to prevent signicant
transboundary harm or in any event to minimize the risk thereof.19

14 Ibid.
15 Kiss (2000, p. 98).
16 See http://untreaty.un.org/ilc/guide/9_7.htm, last visited on 28 September
2007.
17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.

Reports 1996, pp. 241242.


18 Hunter et al. (1998, p. 348).
19 See http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_

7_2001.pdf, last visited on 23 September 2007.


Reflections from the transboundary pollution 279

As for Chinas international responsibility for the Songhua River Pollution


Incident, the rst question is whether or not there are any multilateral or
bilateral treaties with regard to transboundary pollution occurred in cross-
border rivers between China and Russia.
Just before the Songhua River Pollution Incident, on 3 November 2005,
a Joint Communique was signed at the 10th regular meeting between the
Chinese Premier Wen Jiabao and the Russian Prime Minister Mikhail
Fradkov. Article 16 of the Joint Communique is with regard to the
strengthening of an environmental cooperation level, the establishment of
a ChinaRussia environmental cooperation sub-commission subject to the
mechanism of regular meetings between the Chinese and Russian Prime
Ministers, and the consideration of signing of governmental agreements
with regard to the protection of cross-border waters. However, regarding
transboundary pollution occurring in cross-border rivers, there were no
clear and specic responsibility clauses. In addition, in the 1994 Agreement
to Environmental Protection Cooperation between the Chinese and
Russian Republic Government, and the 2001 ChinaRussia Good
Neighborly, Friendly Relations and Cooperation Treaty, both
Governments agreed to jointly cooperate to utilize and protect the water
resources, including cross-border rivers. However, neither the 1994
Agreement nor 2001 Treaty state any responsibility.20
The second question is whether, after the occurrence of the Incident,
China promptly informed Russia. Some Russian ocials complained that
the notication from China was too late in order to allow Russia prepare
an adequate response.
Pursuant to the press conference held by the Chinese Ministry of Foreign
Aairs on 24 November 2005, the Chinese Government had informed the
Russian Government on 22 November of the situation in this regard, and
informed Russia on the relevant pollution situation from time to time. As
regard to whether or not the Chinese Government had promptly informed
the Russian Government, it should be subject to the actual situation after
the Incident. In addition, whether or not the Chinese Government con-
stantly provided relevant information to the Russian Government is also a
consideration for state responsibility.
The third question is whether or not the Chinese Government had taken
appropriate measures after the Incident.

20 See Article 3 of the 1994 Agreement to Environmental Protection

Cooperation between the Chinese and Russian Republic Government, and Article
19 of the 2001 China-Russia Good Neighbourly, Friendly Relations and
Cooperation Treaty.
280 The Songhua River pollution case

We consider that the explanation of appropriate measures should


include two elements. One is whether the Chinese Government had
required PetroChina to take safeguard measures and had conducted
regular inspections before the occurrence of the Incident. The other is
whether the Chinese Government has taken proper pollution control mea-
sures after the occurrence of the Incident.
The explosion that took place with the incident caused heavy toxic chem-
icals to enter into the Songhua River on 13 November 2005, following
which toxicities arrived in Russia on 25 December 2005. In and between
this period, whether or not the Chinese Government had adopted appro-
priate measures to prevent the contaminants from owing into the river and
to prevent the pollution from owing into Russia, constantly taken mea-
sures to clean the polluted river, and worked in proper cooperation with
Russia to reduce and clean the pollution and provide for appropriate assis-
tance to Russia, are all considerations to be taken into account when estab-
lishing Chinas responsibility.
If the Chinese Government is found to be responsible, state responsibil-
ities usually include: termination of the illegal conduct, performance of the
obligation due, restoration of the situation prior to the breach, compensa-
tion for injury sustained, apology, or declaration of legal rights and oblig-
ations.21 For the above-mentioned means of reparation, there are many
discussions in international law text books. We will not discuss these here.
It is worthwhile to note that, in the 1941 Trail Smelter Arbitration, the tri-
bunal not only acknowledged that a state should take responsibility to com-
pensate the harm in other states territories caused by transboundary
pollution which occurred in its own territory, but also to request that the
state parties conduct international cooperation in order to prevent similar
harm in the future.22
In addition, it was understood that when the contaminants arrived in
Russia, the features of the various water pollution is less than Russias
water pollution standard requirements. Thus, the Chinese Government did
not consider that it had caused any substantial economic harm to Russia.
Despite of the fact that the Russian local government intended to claim
compensation for ecology loss, the Chinese Government refused to com-
pensate as ecology loss was unaccountable. It was also an issue to specify
and calculate the losses caused by transboundary pollution.
In Principle 2 of the Draft Principles on the Allocation of Loss in the
Case of the Transboundary Harm Arising Out of the Hazardous Activities

21 Schachter (1991, p. 202).


22 Kiss (2000, p. 79).
Reflections from the transboundary pollution 281

second read by the International Law Commission in 2006 (2006 ILC Loss
Allocation Draft),23 it is stated that damage means signicant damage
caused to humans, property or the environment, and includes: (1) loss of
life or personal injury; (2) loss of, or damage to, property, including which
forms part of cultural heritage; (3) loss or damage by impairment of the
environment; (4) the cost of reasonable measures of reinstatement of the
property, or environment, including natural resources; (5) the costs of rea-
sonable response measures. The above-mentioned Principle 2 also pre-
scribes that environment includes natural resources, both abiotic and
biotic, such as air, water, soil, fauna and ora, the interaction between the
same factors, and the characteristic aspects of the landscape. Those factors
should be a good reference when considering the compensation of trans-
boundary damage.
Furthermore, if the Russian Government would like to claim against the
Chinese Government to admit liability for the transboundary damage
arising out of the Songhua River Pollution Incident, in addition to resolv-
ing the dispute through political and diplomatic ways, there are also judi-
ciable ways i.e. to settle the dispute before an arbitration or judicial
tribunal. Nonetheless, China and Russia have not joined any multilateral
treaties concerning the redress of a dispute arising out of transboundary
pollution, nor bilateral treaties or agreements for the settlement of a trans-
boundary pollution dispute. It appears complicated for both countries to
agree to resolve the dispute through arbitral or judicial ways due to lack of
such treaties or agreements.

2.2 The Russian Government v PetroChina

With regard to the Russian Governments claims against PetroChina for


compensation, as individuals, including enterprises, are not entitled to be a
party under international law, and there have been no cases of individuals,
including enterprises, being parties under international law, the Russian
Government apparently is not entitled to claim against PetroChina on the
ground of international law.
There are no clear, uniform and all-applicable international civil com-
pensation rules for environmental hazardous activities in international law.
However, Principle 4 of the 2006 ILC Loss Allocation Draft prescribes that
each state should take all necessary measures to ensure that prompt and
adequate compensation is available for victims of transboundary damage

23 See http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_

10_2006.pdf, last visited on 25 September 2007.


282 The Songhua River pollution case

caused by hazardous activities located within its territory or otherwise


under its jurisdiction or control, and these measures should include the
imposition of liability on the operator or, where appropriate, other persons
or entities. The 2006 ILC Loss Allocation Draft is a good reference for
China in order to deal with the similar dispute.

2.3 Russian victims v the Chinese Government

With regard to the Russian victims claim against the Chinese Government
for compensation, individuals and non-state entities are not entitled to
legal personality under traditional international law. Therefore, the Russian
people are not entitled to claim against the Chinese Government under
international law. There has been support for granting non-state entities the
right to participate in the dispute concerning international environmental
protection. Under the Optional Rules of Arbitration of Disputes Relating
Natural Resources and/or Environment, adopted on 19 June 2001 by the
Members of Permanent Court of Arbitration,24 individuals and other non-
state entities may le an arbitration of disputes arising out of other states
violation or breach of international environment and natural resources.
Aside from that, individuals and other non-state entities are still not enti-
tled to claim damages under international law.
As to the domestic law in China, there are no clear clauses in Civil
Procedure Law whether or not the Central Government can be a plainti
or a defendant in a civil lawsuit. Notwithstanding, there is no doubt in
Chinese judicial practice that the Central Government has never been a
plainti or a defendant in a civil lawsuit. This may become a customary
law in China. Under the Civil Procedure Law of the PRC, the Supreme
Court is able to review the rst trial of a civil lawsuit. In practice, however,
the Supreme Court has never reviewed any rst trial of civil lawsuits that
have major impact on the whole country. In addition, not only in civil pro-
cedure, but also in an administrative lawsuit procedure, the laws clearly
exclude the Central Government as a defendant. First, the Central
Government normally does not undertake administrative conduct under its
own name but under its subordinate departments or agencies. Secondly,
Article 14 of Administrative Reconsideration Law provides that a citizen,
legal person, or any other organization that refuses to accept a specic
administrative act of a department under the Central Government, or
the peoples government of a province, an autonomous region, or a

24 See http://www.pca-cpa.org/upload/les/ENVIRONMENTAL.pdf, last


visited on 13 May 2007.
Reflections from the transboundary pollution 283

municipality directly under the Central Government, shall apply for


administrative reconsideration to the department under the Central
Government, or the peoples government of the province, the autonomous
region, or the municipality directly under the Central Government that
undertook the specic administrative act. The applicant who refuses to
accept the administrative reconsideration decision may bring a suit before
a peoples court; or apply to the Central Government for a ruling, and the
Central Government shall make a nal ruling according to the provisions
of this Law. If the ruling made by the Central Government is a nal ruling,
even though the people are not willing to accept the ruling, they cannot
appeal the ruling for suing Central Government as a defendant.
Since there are no ways for the Chinese Central Government as being a
plainti or defendant in law and in practice, Russian victims are not able to
claim against the Chinese Government for compensation through lawsuits.

2.4 Russian victims v PetroChina

As the transboundary pollution originated within Chinas territory and the


damage spread across the border from China to Russia, Russian victims
could le a civil lawsuit to sue PetroChina in China under Chinese laws
(place of tort acts), or could also le a civil lawsuit in Russia (place of tort
results).
It is noted that under general principles of international environmental
law, human rights in the eld of environmental emergencies and trans-
boundary pollution shall include the principle of non-citizens equal access
to remedies. If non-citizens seek for administrative or civil procedure for
compensation of environmental harm, the conditions of action submission
shall be similar to those for its national citizens. If non-citizens suer from
environmental harm, they shall be granted the same remedies as national
citizens and receive national treatment in the procedure.25
Because Russia was the place where the people suered from the tort
results, in accordance with general principles of private international law
(i.e. conict of laws) and Russian laws, Russian victims may le civil law-
suits against PetroChina in a Russian court which has the jurisdiction over
the Incident. If the Russian courts nal judgment nds that PetroChina
should admit liability for compensation, and PetroChina has properties
located in Russia for a Russian courts enforcement, this nal judgment is
eectively enforceable and shall be able to compensate part of the Russian
peoples loss and damage at least. However, if PetroChina has no

25 Kiss (2000, p. 105); also see Principle 15 of 2001 ILC Loss Allocation Draft.
284 The Songhua River pollution case

properties located in Russia for enforcement, Russian victims can request


the Chinese court to acknowledge and enforce the Russian courts judg-
ment. This involves whether or not and how Chinese courts acknowledge
and enforce a Russian courts judgment. Chinese courts usually acknow-
ledge foreign courts judgments under PRC Civil Procedure Law if: (1)
there is a mutual legal assistance treaty or agreement between China and
the concerned country; or (2) there are precedents that Chinas court and
the concerned foreign countrys court acknowledge and enforce each
others judgments. Since China and Russia entered into a mutual legal
assistance treaty in 1992 which provides that both China and Russia
acknowledge and enforce the judgments of the others26, Russian people
may request the Chinese court to acknowledge and enforce the Russian
courts judgments under Chinese laws.
To save a redundant procedure for acknowledgement and enforcement
of foreign court judgments, Russian victims may choose to directly le law-
suits in Chinese courts. Article 5 of the PRC Civil Procedure Law prescribes
that aliens, stateless persons, foreign enterprises and organizations that
bring suits or enter appearance in the peoples courts shall have the same
litigation rights and obligations as citizens, legal persons and other organ-
izations of the Peoples Republic of China. If the courts of a foreign
country impose restrictions on the civil litigation rights of the citizens, legal
persons and other organizations of the Peoples Republic of China, the
Peoples Courts of the Peoples Republic of China shall follow the princi-
ple of reciprocity regarding the civil litigation rights of the citizens, enter-
prises and organizations of that foreign country. In accordance with this
Article, the Russian victims standing shall not be a problem. However,
certain problems still exist if Russian victims le lawsuits in Chinese courts,
for example the diculties regarding the burden of proof and to some
extent the courts subconscious favour of national citizens.
In addition, some Peoples Courts in the provisional level are cautious
and provide certain restrictions towards acceptance of new type, sensitive,
dicult and problematic or involving various aspects, strongly sensitive,
social highly concerned cases. For example, on 7 December 2005, with
regard to the public interest environmental lawsuit regarding the Songhua
River Pollution Incident submitted by a professor of law and ve law stu-
dents of Peking University, the High Peoples Court of the Heilongjiang
Province only orally informed that the court would not accept this case. In

26 Article 16, Mutual Legal Assistance between the PRC and the Russian

Republic, available at the website of the National Peoples Congress of PRC,


http://npc.cn/zgrdw/common/zw.jsp?label=WXZLK&id=2829&pdmc=rdgb, last
visited on 25 September 2007.
Reflections from the transboundary pollution 285

Chinas legal practice, it is not an isolated phenomenon.27 Thus, if the


Russian victims choose to le lawsuits in Chinese courts, these types of
obstacles may still exist.
In the general principles of international environmental law concerning
human rights in the eld of environmental emergency and transboundary
pollution, we also consider public participation and public interest litiga-
tion. However, public participation under Chinas laws is still only a prin-
ciple, and there are no public interest litigation laws and rules. If Russian
public interest groups wish to participate to pollution prevention and
control procedures or le a public interest legal action in China, there are
no laws and rules to follow yet.

3 SUGGESTIONS

3.1 Promotion of the establishment of international cooperation with


China

International cooperation is one of the principles in international law, and


is essential in international environmental law. In the 1941 Trail Smelter
Arbitration, the tribunal not only held that the origin state, Canada, should
accept liability for compensation, but also requested both state parties to

27 For example, in the case of Tieshan Community Residents v Tieyin Steel Ltd

(in Zibo City, Shandong Province), the District Court of Shandong Province,
according to the Acceptance Opinion of New Types, Sensitive, Dicult and
Problematic Cases of High People Court of Shangdong Province (Tentatively
Valid) (Acceptance Opinion), did not accept the case nor issue any ruling in
writing. The Acceptance Opinion provided that if the case is more dicult for the
court to enforce, comparing with Dang (i.e. the Communist Party of China) and
Government to reconcile the dispute, the court may not accept it; however, in this
situation, the court shall well coordinate with the relevant agencies to properly rec-
oncile the dispute. In addition, the Acceptance Opinion also provided that for the
class lawsuit with same or similar facts and claims, and numerous parties, the court
shall break up the whole case into dierent cases to reduce the parties risk, expense
and pressure as much as possible. The Acceptance Opinion is available at
the website of Center for Legal Assistance to Pollution Victims in China,
China University of Political Science and Law http://www.clapv.org/new/
show.php?id=1362&catename, last visited on 26 September 2007. Article 41 of
Concerning Reinforcement of Management of Lawsuits Review Deadline in the
High Peoples Court of Beijing Municipality (Tentatively Valid) (Jing Kao Fa Fa
1999365), passed by Case Review Commission of High Peoples Court of Beijing
Municipality on 27 September 1999, also provided that the cases with substantial
inuence in Beijing, in China, or in the world, political sensitiveness or mass dis-
putes shall be reported to the High Court.
286 The Songhua River pollution case

establish cooperation. Alexandre Kiss considered that in the level of inter-


national law, environment is only protected through the compensation to
the loss or damage occurred; however, he found that beyond this level, in
not denying the compensation system, international society shall establish
environmental protection cooperation between and among states.28
Before the Songhua River Pollution Incident, the Joint Communique for
the 10th Regular Meeting Between the Chinese and Russian Prime
Ministers had clearly stated considerations to sign bilateral agreements
concerning cooperation of cross-border water bodies. It is also under-
stood that, since the Incident, the Chinese and Russian Governments have
concentrated on negotiation and the sharing of information on pollution,
prevention and control of the Incident. The Chinese and Russian
Governments signed a Memorandum to Joint Monitor Cross-border
Rivers between China and Russia in 2002. In accordance with this
Memorandum, China and Russia conducted eight joint monitoring for the
Heilong River and the Ussuri River (the upper stream of Heilong River).
Further, on 21 February 2006, the Chinese Minister of the State
Environmental Protection Administration (SEPA), which was upgraded to
the Ministry of Environmental Protection on 27 March 2008, and the
Russian Minister of Natural Resources signed an agreement to jointly
monitor the water quality of cross-border rivers and lakes and work on a
contingency plan for signicant emergent pollution incidents. On 21 March
2006, the Chinese-Russian Joint Statement was signed by the Chinese
President Hu Jintao and the Russian President Vladimir Putin. The state-
ment highlighted the cooperation between the Central Governments and
local governments of both countries which has been further promoted in
recent years. Both parties agreed to jointly strengthen environmental pro-
tection in the cross-border areas, actively prevent environmental disasters,
reduce the environmental risk of cross-border areas as much as possible
and accelerate the negotiation of an agreement on protection and reason-
able cooperation while using cross-border water bodies. In May 2006, both
countries agreed the Plan Concerning Joint Monitor Water Quality of
Cross-border Water Bodies Between China and Russia. In accordance with
the Plan, China and Russia will, from 2007, start a four-year joint moni-
toring plan of cross-border rivers, including the Heilong River.29

28 Kiss (2000, p. 79).


29 China Environmental Press, Look Back and Review of ChinaRussia
Cooperation of Environmental Protection: Cooperation Promotion and Fast
Development, 9 October 2006, available at http://env.people.com.cn/BIG5/
4894622.html, last visited on 26 September 2007.
Reflections from the transboundary pollution 287

We are of the opinion that after the Songhua River Pollution Incident,
with regard to the protection of cross-border water area, in addition to the
prevention and control of long-term pollution, the international coopera-
tion on precaution, prevention and contingency plan of signicant emer-
gent disasters like the Songhua River Pollution Incident shall be
incorporated into international agreements between China and other
neighbouring countries. In particular, because the origin and upper stream
of many international large rivers lies in China, the prevention and control
of transboundary pollution should be incorporated into Chinas plan of
environmental protection.

3.2 Establishment of international contingency plan

Since the Chinese Government had just taken proper international


response in 10 days after the occurrence of the Songhua River Pollution
Incident, it appeared that the Chinese Government still lack an eective
contingency plan and system to an emergent incident. In terms of
signicant impact on the environmental emergent disaster to the neigh-
bouring countries, it is essential to establish an international contingency
plan in China. The rst step of an international contingency plan is
notication of the disaster, including the establishment of precautionary
procedures and networks, to the countries impacted by the pollution. With
regard to the provision of assistance to the countries polluted, it may
concern the intervention in the territory of foreign countries and the char-
acteristics in international law are not clear. However, as to the conduction
of cooperation for emergencies, it usually involves the prior preparation
and action afterwards, and the international society still suggests that states
establish a contingency plan.

3.3 Establishment of nancial contingency plan for compensation of


transboundary pollution

When transboundary pollution occurs, victims, including individuals, legal


persons and states, may claim compensation against the operator of the
pollution source through political and diplomatic channels or international
legal actions. The operators fund for compensation generally comes from
its own capital or insurance. However, when there is mass transboundary
pollution causing signicant harm, victims may not be able to recover full
or adequate compensation.
Principle 4 of the 2006 ILC Loss Allocation Draft requests that each
state should take all necessary measures to ensure that prompt and ade-
quate compensation is available for victims of transboundary damage
288 The Songhua River pollution case

caused by hazardous activities located within its territory or otherwise


under its jurisdiction or control. These measures should include the
imposition of liability on the operator or, where appropriate, other
persons or entities. These measures should also include the requirement
on the operator or, where appropriate, the other person or entity, to estab-
lish and maintain nancial security such as insurance, bonds or other
nancial guarantees to cover compensation claims. In appropriate cases,
these measures should include the requirement for the establishment of
industry-wide funds at the national level. In the event that the measures
under the preceding paragraphs are insucient to provide adequate com-
pensation, the state of origin should also ensure that additional nancial
resources are made available. Principle 7 of the 2006 ILC Loss Allocation
Draft also provides that where, in respect of particular categories of haz-
ardous activities, specic global, regional or bilateral agreements would
provide eective arrangements concerning compensation, response
measures and international and domestic remedies, all eorts should be
made to conclude such specic agreements. The Chinese Government
may also consider establishing nancial contingency plans for com-
pensation.

3.4 Provision of equal treatment to non-citizens

Although the victims of transboundary pollution are not able to seek reme-
dies through international law, there is support in international environ-
mental law for the protection of individual rights, in particular for
provision of equal treatment to non-citizens. In addition to the above-
mentioned non-citizens equal access to remedies, it also includes
notication of non-citizens, non-citizens participation in the decision-
making procedure and, when the rules of due process are not fully followed,
non-citizens equal access to legal actions. The 1992 Helsinki Convention
on the Transboundary Eects of Industrial Accidents provides detailed
rules on notication to public and public participation and it is a good ref-
erence for the Chinese Government.30
As mentioned above, the Russian people may have limitations in the
channels and ways of suing PetroChina. In respect of the intention of the
Russian public interest groups to le a public lawsuit in China, there are
no relevant laws and rules to follow. In addition, with regard to the public
participation system, there is certainly still room for improvement in
China.

30 Kiss (2000, pp. 106107).


Reflections from the transboundary pollution 289

4 ACTUAL ACTIONS TAKEN BY CHINA

Notwithstanding the above-mentioned suggestions based on the fact that


the Chinese Government or PetroChina are not eligible as defendants
under the laws and in practice in China, the following facts may illustrate
that the Chinese Government may be unwilling to accept any legal solu-
tions or suggestions which may harm the interests of the state-owned enter-
prises and the government itself.
On 6 January 2006, SEPA held a hearing in Harbin City for the publics
opinions of the Songhua River Basin Water Pollution Control
Management. China planned to select 263 priority management projects.
The water pollution control budget was estimated at RMB 26.6 billon
yuans. It was the Government, in other words, taxpayers, who paid for the
polluter. In particular, why should the Chinese victims of the Incident pay
for the polluter? According to an ocial from SEPA, the RMB 26.6 billion
yuans were not only contributed by the Governments (central and local)
but also by the enterprises. However, we seriously question how large the
enterprises input is. Article 55 of Water Pollution Prevention and Control
Act prescribes that the entities make water pollution . . . shall eliminate the
harm of pollution. However, in the current case, PetroChina apparently
does not take full responsibility to eliminate the harm of the pollution but
transfers it to a very large extent to taxpayers.
At the beginning of 2007, SEPA ruled to ne the polluters of the
Songhua River Pollution Incident with the amount of RMB 1 million
yuans (approximately 90,000). Compared to the damage it caused, RMB
1 million yuans are only a drop in the ocean. According to the data pub-
lished by the website of the Central Government, the Incident caused a
serious impact to over 6 million people alongside Songhua River. The pro-
duction value of enterprises in Harbin City reduced RMB 1.2 billion yuans,
and direct economic loss was up to RMB 560 million yuans.31
If the Central Government believes that economic development is more
important than environmental protection, it is much more serious in local
governments. Many local governments ranked serious pollution enterprises
as government key protection enterprises. Even though these enterprises
violate environmental protection laws, they will not be seriously punished,
or will not be punished at all. For the sake of local GDP growth, some local
governments protection for invited enterprises is almost beyond belief.
For example, in Jiaohe City of Jilin Province where the Songhua River orig-
inates, a signboard setup by Jiaohe City Government stated that who is

31 See China Environmental Press, 24 January 2007.


290 The Songhua River pollution case

against invited enterprises, is against the people of Jiaohe City. Some local
governments in relatively developed areas still insist on the growth of the
GDP even when it causes environmental pollution again and again. In May
2007, the blue algae eruption occurred in Taihu Lake which even caused a
drinking water crisis in Wuxi City, which is known from ancient times as
the water village south of Yangzi River. Although the Central Govern-
ments intentions to carry through the scientic development concept and
the energy saving, discharge reduction in recent years is very strong, due
to the controversy between central and local governments, and the estab-
lishment of scientic evaluation of ocial achievements, it is still a big chal-
lenge and there is a long way to go for the Chinese Government.

5 CONCLUSION

As mentioned, after the Songhua River Pollution Incident, China and


Russia started to monitor the water quality of the Songhua River and its
downstream Heilong River in close cooperation, signed certain bilateral
agreements for cooperation in the protection of cross-border water bodies
and negotiated to establish the potential dispute solutions for transbound-
ary pollution. In addition to the Songhua River, China is also the state of
origin of several international large rivers. China thus plays a very
signicant role in the use, development and protection of river resources.
Therefore, for the signicant transboundary water pollution like the
Songhua River Pollution Incident, the Chinese Government may consider
the above-mentioned suggestions and make a response in advance.

REFERENCES

Hunter, D., Salzman, J., Zaelke, D. (1998), International Environmental Law and
Policy, Foundation Press.
Kiss, A. (2000), Droit International de LEnvironmnement (2nd edn), Chinese trans-
lation by Zhang, Ruosi, Law Press.
Palmer, G. (1992), New Ways to Make International Environmental Law, 86,
A.J.I.L. 259, 265.
Schachter, O. (1991), International Law in Theory and Practice, Kluwer Academic
Publishers.
Wang, T. (2004), International Law, Beijing: Law Press.
Weiss, E., McCarey, S.C., Barstow Magraw, D., Szasz, P.C. and Lutz, R.E. (eds)
(2003), International Environmental Law and Policy, Beijing: CITIC Publishing
House.
11. Pondering over the incident of
Songhua River pollution from the
perspective of environmental law
Wang Canfa, Yu Wen-xuan, Li Dan and
Li Jun-hong

1 INTRODUCTION

On 13 November 2005, an explosion occurred in Benzhydrol Factory of


Jilin Petrochemical Co Ltd in Jilin Province, China, which caused about
100 tons of benzene, nitrobenzene and other poisonous chemical materials
to leak into the part of Songhua River in Jilin City and down to the lower
breaches. The sewage discharged from this area went into the Songhua
River, mainly through the East No.10 Line of Jilin Petrochemical Co Ltd,
and resulted in a signicant environmental pollution incident. The water
supply was stopped for four days in Harbin City, which brought great
diculty to the life of millions of residents living along the river and badly
aected industrial production. The direct economic loss to Harbin city is
about RMB1.5 billion.1 Russia claimed compensation for the pollution of
its part of the river area. After the Incident, people considered some of the
facts: the attitude of the polluter, the reports and circulars giving informa-
tion on the incident, the responsibility of the relevant principals, symbolic
litigation2,3 brought about by citizens and experts as well as the litigation
with nature as the joint plainti and so on. In fact, this was not an isolated
incident. Other incidents had taken place in the last two years, e.g. the envi-
ronmental pollution incidents of Tuojiang River and Beijiang River and

1 See Liu Shuduo (2005).


2 Ding Ning, citizen of Harbin, brought a lawsuit against Nangang District
Court, demanding a RMB15 symbolic compensation from Jinlin Petrochemical Co
Ltd. See the article (Author unknown, 2005a) Songhua River pollution incident
will not brings about litigation of large scale published on 7 December 2005, avail-
able at http://www.c-waterworld./info/shownews.asp?newsid=2338.
3 Ibid.

291
292 The Songhua River pollution case

the incident of Imperial Palace, have got tremendous public attention.


These frequent environmental incidents and accidents in recent years
suggest that there are many problems in Chinas environmental legislation
and, instead of dealing with individual cases one by one, counter-measures
should be brought forward to settle them well and thoroughly.

2 PROBLEMS OF CHINAS CURRENT


ENVIRONMENTAL LEGISLATION THROUGH
ANALYSIS OF THE SONGHUA RIVER
POLLUTION INCIDENT
2.1 The guiding legislation ideology is in deviation from the basic
requirements of environmental protection

The guiding legislation ideology not only aects the rationality of the legal
system directly, but also determines whether the legal system can play its
role as it should. The Incident of Songhua River Pollution reected that the
guiding ideology for environmental legislation in China has deviated from
the basic requirements of environmental protection in certain aspects. This
deviation could be viewed in the following aspects.
First, the treatment of pollution incidents is given much more attention
than precautionary measures while the latter is always ignored. The
primary principle for environmental protection in China is precaution-
oriented with integration of precaution and treatment, which internally
includes precaution and treatment, both of which should mutually support
each other without any bias. However, precaution gets much less attention
in the current environmental legislation. For example, the Environmental
Protection Law and Law on Prevention and Control of Water Pollution,
the most closely related laws to the incident of Songhua River pollution,
only regulate that environment exploiters should adopt counter-emergency
measures, report and issue circulars on the situation etc. Obligation of
setting up the counter-emergency plan, which can fully reect the precau-
tionary principle, cannot be found in the above acts. Obviously, lacking the
restraint and support of a counter-emergency plan mechanism is one of the
main causes that Benzhydrol Factory of Jilin Petrochemical Co Ltd could
not deal well with the Incident. If there was a counter-emergency plan in
operation, such incidents would not cause severe pollution on such a large
scale. Appropriate measures could be taken, such as forcing any dangerous
leakages into pre-set areas where emergency treatment can take place.
Nevertheless, since the environmental legislation does not compel the dis-
charge unit with the potential to cause severe pollution to develop a counter
The perspective of environmental law 293

emergency plan, when incidents happen, the unit would be at a loss as to


what to do and unnecessary severe pollution may result. In addition, an
environmental counter-emergency system should be the combination of
precaution and afterwards treatment, which include the obligations not
only on making a counter-emergency plan before the exploitation of envir-
onment and resources but also on taking counter-emergency measures in
time, reporting and issuing circulars etc. when environmental pollution or
damage incidents occur.
Secondly, much attention has been paid to the environmental impact of
construction projects and that of strategy, policy, law and plan gets little
attraction. It is reasonable for environmental legislators to give much atten-
tion to environmental impact of construction projects. However, this does
not mean that the environmental impact of strategy, policy, law and plan
can be neglected. Compared with construction projects, the environmental
impact of strategy, policy, law and plan may be more severe because it often
causes area source pollution, directly or indirectly. Although the Law of
Environmental Impact Assessment (hereinafter EIA Law) has enlarged its
assessment objects from construction projects to planning, the scope of
assessment is still narrow. Strategy, policy, law and regulation are excluded.
The assessment of planning is incomplete since the EIA Law does not
require assessing the environmental impact of the economic and social
development plan. Because the construction of specic projects (e.g.
Benzhydrol Factory of Jilin Petrochemical Co Ltd in the Songhua River
Pollution Incident) is based on micro-strategy and policies, if the precau-
tionary principle cannot be fully carried out in EIA and put the assessment
of strategy, policy, regulation, economic and social development plan into
EIA, incidents like Songhua River Pollution cannot be avoided in the future.
Lastly, environmental legislation is attracting more attention than the
implementation of environmental laws and regulations. The emphasis on
and improvement of environmental legislation is the necessity to enhance
national environmental rule level. However, legislation is not the only
objective. Only through law enforcement can laws and regulations be real-
ized and the ultimate objective of legislation be achieved. Without imple-
mentation, law will lose its value.4 In the eld of environmental law, at
present, the attention given to the implementation of law is far from
enough to realize the objective of legislation. This can be reected in the
following two aspects. On the one hand, legislation itself does not give
enough attention to the feasibility of the law and regulation. For instance,
Standards for Drinking Water Quality GB5749-85, which is critical to

4 See Liu Jinguo and Shu Guoying (1999, p. 165).


294 The Songhua River pollution case

peoples life and health, has not been revised for almost 20 years since its
publication in 1985. As a result, the competent authorities do not know
what they can do, and the water supply enterprises would not like to
improve the water quality. It has become dicult to supervise and control
the safety of drinking water.5 Also one common problem, causing practi-
cal diculties in implementing laws and regulations, is that the environ-
mental legislation in China only species the obligation with no or unclear
corresponding liabilities. If those who violate laws or regulations are not
punished, resolutions or directives with so-called legal binding nature are
just equivalent to recommendations or suggestions.6 This has been a hard
wound in Chinas environmental legislation. On the other hand, in prac-
tice, laws and regulations are not followed to dierent degrees and the
current systems cannot be implemented thoroughly. Take, for example, the
Songhua River Pollution Incident: the Benzhydrol Factory of Jilin
Petrochemical Co Ltd is located only 500 meters away from the Songhua
River. This is one of the main reasons for the water pollution. In fact,
chances of such incidents as the Songhua River Pollution would be greatly
reduced should the relevant authorities have assessed the construction of
Benzhydrol Factory in accordance with EIA regulations when approving
the project and fully considered the rationality of site choice.

2.2 Some important environmental legal systems are badly in need of


establishment

Soundness of legal systems determines the perfection and feasibility of the


legal regime directly. At present, some important environmental legal
systems have not yet been established. The Mechanism for Socializing
Environmental Risks (hereinafter MSER), for instance, mainly compris-
ing an environmental liability insurance system and an environmental
damage compensation system, is absent in the current environmental legal
systems in China. It is signicant to ensure timely and sucient compen-
sation to pollution victims, reduce bankrupt risks of enterprises as a result
of huge compensatory damages and thus enhance the harmonious devel-
opment of environment, society and economy. In the Songhua River
Pollution Incident, China National Petroleum Corporation (CNPC)
should be held liable for its branch in Jilin, that is Jilin Petrochemical Co
Ltd. If the compensation includes the assets loss, health and ecological
damages as well as the other costs incurred as a result of the pollution, the

5 See Author unknown (2005b).


6 See Hamilton, Madison and Gay (1980, p. 75).
The perspective of environmental law 295

amount would be almost beyond imagination. Such a large compensation


amount will be beyond CNPCs capability and would consequently aect
the oil price or oil safety in China. However, the justice of law undoubtedly
requires CNPC to be responsible for the Incident. From this point of view,
the MSER is of great importance but no or few regulations are found in
Chinas current legislation about the environmental liability insurance
system and environmental damage compensation system. Relevant legal
systems badly need to be established.7
Regarding the Environmental Liability Insurance System (ELIS), some
problems still exist in spite of some regulations in some current relevant
laws or acts. First of all, there are no comprehensive and explicit regula-
tions. At present, only two laws or acts in China are directly related to envir-
onmental liability insurance, Regulations of the Peoples Republic of China
Concerning Environmental Protection in Oshore Oil Exploration and
Exploitation,8 and Law of Ocean Environmental Protection.9 The insur-
ance only covers petroleum pollution and pollution resulting from leaks. As
for other environmental liability issues needing to be addressed, e.g. water
pollution liability insurance, nuclear incident liability insurance, noise and
radiation pollution and the like, there are no comprehensive and explicit
articles. Moreover, most environmental liability insurances are a kind of
voluntary insurance, which could not reach the objectives of environmen-
tal liability insurance. In the early 1990s, insurance companies and local
environmental protection authorities jointly tried to present pollution lia-
bility insurance. The trial was rst piloted in Dalian City, and was then pro-
moted in Shenyang, Changchun, Jilin etc, but the eect was not
substantial.10 Last but not the least problem is that there is a less than
perfect legal monitoring system. Because the pollutant discharge enter-
prises are always big taxpayers, they are protected by local governments
openly or secretly, which makes it dicult for victims to claim damages and
protect their interests.
As for the Environmental Damage Compensation System (EDCS), there
are no special regulations in the current environmental legislation in China
as yet. At the international level, some countries do have made regulations

17 In addition, current legislation also does not regulate the coordination and

connection between mechanisms for socializing environmental damages compen-


sation and other principles and mechanisms, e.g. non-fault liability principle,
punish compensation mechanism and the like.
18 See Regulations of the Peoples Republic of China Concerning

Environmental Protection in Oshore Oil Exploration, Article 9.


19 See Law of Ocean Environmental Protection, Article 28.
10 See Zheng Juntao (2005, p. 122).
296 The Songhua River pollution case

on environmental damage compensation. For instance, the Super Fund Act


of America species that all the owners and operators of ships and facilities
for hazardous goods must establish and maintain nancial assurance mea-
sures, including insurance, voucher, assurance bonds, letter of credit or
qualied self-assurance, among which compensation of damages to natural
resources is included.11 The Law of Public Health Hazards Compensation
of Japan species that only when the personal injury complies with the three
conditions, namely designated region, exposed condition and designated
illness, can the compensation be made.12 The Green Paper on Remedying
Environmental Damage submitted by the EU Committee in 1993 to the
European Council and European Economic and Social Committee, is pro-
posed to its members to establish a joint compensation system. This joint
compensation system is to remedy environmental damages through the
establishment of an environmental risk compensation fund based on fees or
special tax collected by governments and by way of administrative com-
pensation. When the party responsible for a tort is identied, some funds
retain the right to demand compensation from the responsible party on
the basis of environmental tort liability. China joined the International
Convention on Civil Liability for Oil Pollution Damage (1969). The
Convention established the fund for international oil pollution compensa-
tion. As a member of the Convention, when dealing with international oil
pollution incidents, China should operate in accordance with relevant regu-
lations of the fund for international oil pollution compensation.13

2.3 Some supplementary systems are needed in the current environmental


legal system

Although the environmental legal regime of China touches some systems


in the legislation, relevant supplementary or specic systems are still
needed. This is quite obvious in systems of environmental counter-
emergency and settlement of administrative transregional/transboundary
environmental disputes.

2.3.1 Environmental counter-emergency system


The Songhua River Pollution Incident reects this system distinctively. The
inecient communication among administrative authorities in charge of
environmental protection aected the incident disposal directly. Harbin
City Council issued two announcements about stopping the water supply

11 See Wang Mingyuan (2001, p. 161).


12 See Qiu Congzhi (1984, p. 185).
13 See Chen Ling and Tang Pei (2002, p. 94).
The perspective of environmental law 297

with totally dierent contents, which further intensied the residents


panic, while Jilin Petrochemical Co Ltd did nothing when the Incident
occurred. What was the problem in view of the environmental counter-
emergency system? Actually, this system could be rst found in Chinas Law
of Ocean Environmental protection in 1982 and then some other laws, reg-
ulations, rules and local regulations issued or revised later. Yet, generally
speaking, the legislation on such a system still has many problems. On the
one hand, a complete environmental counter-emergency system has not
been set up yet. In January 2006, China issued the General Counter
Emergency Plan for National Public Incidents (GCEPNPI), which includes
the regulations on environmental pollution and ecological damage.14
However, the framework of GCEPNPI has not nished the national
counter-emergency plan yet.15 And in the State Councils counter-
emergency plans, no counter-emergency plan for environmental incidents
can be found. The general counter-emergency plans have not been devel-
oped at provincial level either. The other problem should be the incomplete
the contents of relevant laws and regulations. There is no comprehensive
legislation on liability of environmental developer and exploiter in making
a counter-emergency plan for environmental incidents, adopting counter-
emergency measures in time and fullling the obligation of reporting envir-
onmental incidents.16 It is because of this that, in the Songhua River
Pollution Incident, no legal basis for the judgment of the violation of law
and the corresponding liability could be found in deciding whether
Benzhydrol Factory of Jilin Petrochemical Co Ltd had reported the

14 See General Counter Emergency Plan for National Public Incidents, Article

1.3(2).
15 For instance, the counter-emergency plan for agricultural incidents caused by

nocuous/exotic species; counter-emergency plan for agricultural incidents resulted


by genetically modied organisms; counter-emergency plan for signicant forestry
incidents resulted by nocuous/exotic species; counter-emergency plan for agricul-
tural incidents resulted by environmental pollution; counter-emergency plan for
signicant forestry incidents resulted by ecological damages; counter-emergency
plan for incidents resulted by hazardous chemical substances etc.
16 Only Article 55 of Prevention and Control of Radiation Pollution and

Article 75 of Prevention and Control of Solid Waste Pollution stipulate clearly that
the exploiters will be held responsible without the counter-emergency plan for
environmental incidents. Article 73 of Law of Ocean Environmental Protection and
Articles 17 and 18 of the Regulation on Prevention of Environmental Pollution by
Ship Dismantling regulate that the environmental developer and exploiter will be
held responsible without adopting the counter-emergency measures. Article 74 of
Law of Ocean Environmental Protection and Article 55 of Prevention and Control
of Radiation Pollution prescribe that the environmental developer and exploiter
should accept liability if not performing the reporting and informing obligations.
298 The Songhua River pollution case

incident, developed the counter-emergency plan, adopted the counter-


emergency measures, or informed the local municipal government and
public of the Incident development honestly and in good time.

2.3.2 System for the settlement of administrative transregional


environmental disputes
The Songhua River Pollution Incident caused great economic loss and eco-
logical damages as well as having a severe aect on local industry and the
residents lives in Heilongjiang and Jilin Provinces. The local governments
in these areas have made it clear that they will investigate the liability of
Jilin Petrochemical Co Ltd under the law.17 This will involve the issues of
administrative transregional environmental disputes settlement. In Chinas
current legislation, these problems could be mainly reected in the follow-
ing three aspects. The rst is the obscure legal procedure of disputes settle-
ment, which leads to delayed settlement and thus untimely disposal. The
Law of the Peoples Republic of China on Prevention and Control of Water
Pollution does not specify clear procedure requirements and time limits
regarding administrative transregional water pollution disputes settle-
ment.18 Consequently, for a long time many administrative transregional
water pollution disputes could not be settled and the stakeholders could
not get compensation in time as a result. All these aect the seriousness and
authoritativeness of national laws and regulations. The second problem is
related to the indenite legal consequence of dispute settlement.
Concerning the administrative transregional environmental disputes settle-
ment, if the negotiation between local governments and their government at
higher level fails, no explicit legal consequences are regulated in current laws
and regulations. Victims could not protect their rights through other legal
means. Social conicts might be intensied and social stability might be
aected. China should perfect the current administrative transregional envi-
ronmental disputes settlement system through environmental legislation.
The third problem is that the specic amount of compensation cannot be
identied because of a lack of general standards and unied authoritative
institutes for pollution loss assessment. Along with the general nature of
environmental disputes settlement, administrative transregional environ-

17 See Heilongjiang Environmental Protection Bureau claim that it will investi-

gate the liability of Jinlin Petrochemical Co Ltd, http://www.runsky.com/


news/2005-11/25/content 702338.htm, accessed 20 January 2006.
18 Article 26 of Law of the Peoples Republic of China on Prevention and

Control of Water Pollution stipulates that local governments will solve the trans-
districts water pollution disputes through consultation or their higher level govern-
ment deal with the dispute through coordination.
The perspective of environmental law 299

mental disputes settlement also has its own characteristics, that is, sophisti-
cated legal relationships and dispute settlement standards.19 In reality, since
local governments cannot usually reach agreements on what is environmen-
tal pollution, the standards of the pollution incident, the responsible body
as well as assessment of pollution loss, they often have to face the result of
failed negotiation.

2.3.3 Transboundary environmental disputes settlement system


The Songhua River Pollution Incident will highlight the issue of trans-
boundary environmental disputes settlement between China and Russia.
International law has a relatively advanced legal system at this point. Many
countries intend to achieve balance in environmental rights and obligations
through a civil compensation mechanism. Such regulation on international
civil compensation liability exists in various treaties for hazardous activ-
ities.20 In settling environmental pollution disputes of international water-
ways, there are some international or regional treaties, e.g. International
Convention on Regime of Un-navigable Waterways, Convention on Long-
range Trans-boundary Air Pollution, Washington Act Concerning Border
River and Boundary with Canada, Convention on Pollution Prevention of
Rhine by International Committee. However, current international law
does not have a unied rule for civil compensation liability, which can be
applied to all the activities harmful to the environment.21 China has not
joined or signed special treaties with other countries regarding trans-
boundary environmental disputes settlement, but she does have some coop-
eration agreements with neighbouring countries on utilization and
protection of transboundary rivers. For instance, in September 2001,
China signed the Cooperation Agreement on Utilization and Protection of
Trans-boundary Rivers with Kazakhstan, although this Agreement does
not include any special regulations on transboundary environmental dis-
putes settlement. At national level, current environmental legislation in
China is almost blank in this regard, which makes China lose its initiative
in international dispute settlement and have no legal basis to support
herself when dealing with transboundary water pollution disputes. Chinas

19 Proposals on legislation of trans-districts water pollution disputes, available

at http://www.china.org.cn/chinese/zhuanti/287560.htm. January 20, 2006.


20 Environmental damages compensation is regulated in the Convention on

Third Party Liability in the Field of Nuclear Energy, the International Convention
on Civil Liability for Oil Pollution Damage and the Basel Convention on Liability
and Compensation of Damages Caused by Transboundary Movements of
Hazardous Wastes and Their Disposal.
21 See Wang Xi (2005, p. 144).
300 The Songhua River pollution case

environmental legislation needs to establish a long-term and eective legal


mechanism so as to, in good time, deal with international disputes brought
by transboundary environmental pollution in the future.

2.4 Relevant regulations need perfection

If law can not fully resolve new disputes caused by rapid social and eco-
nomic development, people will not rely on law as an instrument of social
organization.22 The Songhua River Pollution Incident presents a sharp
question to Chinas environmental legislation: are the relevant laws and
regulations able to resolve the concerned environmental legal issues well?
At least two questions are found to have no denitive answers.
One question is whether the scope of environmental damage compensa-
tion could be clearly identied. In the Songhua River Pollution Incident, it
is an unarguable fact that the damages were caused by Benzhydrol Factory
of Jilin Petrochemical Co Ltd. If there is damage, there is compensation.
However, how is it possible to identify the scope of environmental compen-
sation of Benzhydrol Factory of Jilin Petrochemical Co Ltd as a polluter?
The Environmental Protection Law of China regulates that a (A) unit that
has caused an environmental pollution hazard shall have the obligation to
eliminate it and make compensation to the unit or individual that suered
direct losses.23 According to this clause, the unit or individual who suered
indirect loss is not the target of the compensation. Is this clause justiable?
Should emotional loss, as a result of environmental pollution, be compen-
sated? Moreover, concerning ecological damage, is compensation available
and would the value of the environment itself be reected? If ecological
damages are included in the targets of compensation, who will be responsi-
ble for assessment and what is the procedure? Also, to whom should the
compensation be given once the assessment result is revealed? In addition,
in the Songhua River Pollution Incident, should the cost, incurred by oper-
ating a counter-emergency plan by Heilongjiang provincial government,
Harbin and other city governments along the Songhua River, and other rel-
evant expenses be included in the amount included in compensation by Jilin
Petrochemical Co Ltd? The above-mentioned problems could nd no clear
answers in Chinas current environmental legislation.
The other question is, could the current litigation system deal with special
characteristics of environmental lawsuits? This frequently discussed topic
was put forward again by the Songhua River Pollution Incident. Through

22 See Dworkin, translated by Xin Chunying and Wu Yuzhang (1998).


23 See Environmental Protection Law of China, Article 41.
The perspective of environmental law 301

litigation to solve the damages compensation problem, who is entitled to ini-


tiate an action? According to the Civil Procedural Law of China, the plainti
must be an individual, legal person or any other organization that has a
direct interest in the case.24 In accordance with this article, ecological envi-
ronment itself and any other legal bodies who have no direct interest with the
case have no right to bring a suit for the ecological damages. Thus, with
respect to ecological environmental protection, no body can be the plainti.
For this reason, after the Songhua River Pollution, in November 2005 some
experts initiated the rst environment civil public interest litigation with
nature as joint-plainti. Although they realized, before initiating an action,
that it was very likely for the court to refuse the case because of being an
unqualied plainti according to the Law of Civil Procedure of China, to
promote the judicial ideology and the reform of trial system in China and
push the Law of Civil Procedure under revision to add clauses on public
interest litigation, these experts still went to Harbin to bring a lawsuit, but
the court, as expected, did not accept the case.25 If such problems cannot
be resolved in environmental legislation and other relevant legislations,
diculty and impediments will undoubtedly exist in judicial practice.

3 WAYS TO IMPROVE CHINAS ENVIRONMENTAL


LEGISLATION

The analysis above shows that the Songhua River Pollution Incident and
other pollution cases did not take place accidentally. They reect the short-
comings of the current environmental legislation and law enforcement, and
they are the direct consequence of the imperfect environmental legislation.
To avoid similar incidents, it is necessary to change the guiding ideology of
environmental legislation, perfect environmental laws and regulations, and
resolve the problems in environmental law enforcement.

3.1 Change the ideology and establish the basic principle of environmental
legislation: social and economic development should be in harmony
with environmental protection

Since the end of the 1970s, environmental legislation practised the principle
of environmental protection should be in accordance with the social and

24
See Civil Procedural Law of China, Article 108.
25
Professors and graduates of the Law Institute of Peking University
sued against CNPC on behalf of Songhua River, http://www.acriticism.
com/article.asp?Newsid=7271&type=1006, accessed December 2005.
302 The Songhua River pollution case

economic development.26 The purpose of environmental legislation was to


promote social economic development.27 The consequence was that envi-
ronmental protection was often subject to economic development. Though
the number of environmental laws and regulations have been on the increase,
the environment is getting worse and worse. To solve the problem in the
guiding ideology of legislation, on 12 December 2005, the State Council
issued the Decision on Carrying out Scientic Development Concept and
Strengthening Environmental Protection. The Resolution clearly required
that social and economic development should be coordinated with environ-
mental protection. For regions with limited environment capacity and
insucient natural resources but relatively developed economy, priority
should be given to environmental protection. These regions should strive to
develop new and high technologies, optimize the industry structure, precipi-
tate the updating of industries and products, and at the same time take the
lead in reducing the pollutant discharge, so that production increases while
the pollution is reduced. For regions with a fragile ecological environment
and the ecological function protection zones, the exploitation should be
limited. With priority on environmental protection, these regions and zones
should reasonably choose the development orientation, and develop the
industries of their own characteristics so as to rehabilitate and foster the eco-
logical function, and gradually restore ecological balance.28 This can be
regarded as an historical change in the environmental policies and basic prin-
ciples of environmental legislation.29 Now it needs legislation bodies at
various levels to put this historical change into actual environmental legisla-
tion. First, establish the principle of environmental protection coordinates
with the development of society and economy, and ultimately make the pri-
ority on the environment the basic principle of environmental laws.30 To
achieve the goal of making social and economic development harmonious
with environmental protection, three aspects should be emphasized in envi-
ronmental legislation as illustrated below.

3.1.1 Precautionary principle should be carried out completely in the


environmental legislation
The most important point in this regard is that the precautionary principle
should be reected in the legislation in the form of specic and clear

26 See Environmental Protection Law of China 1989, Article 4.


27 See Environmental Protection Law (trial) 1979, Article 2.
28 See Resolution on Carrying out Scientic Development Concept and

Strengthening Environmental Protection issued by State Council on 3 December


2005, Article 8, Chapter 3.
29 See Wang Canfa (2006a).
30 See Wang Canfa (2006b).
The perspective of environmental law 303

regulations instead of only staying at a theoretical or conceptual stage. For


instance, regarding construction projects, if there is any irreversible envi-
ronmental impact, the project must be stopped. As for the projects without
adopting environmental protection measures but discharging pollution, the
operation must be forbidden. Any existing enterprises causing severe pol-
lution which cannot be treated, must be eliminated and shut down. For the
units with potential environmental risks, a plan for environmental counter-
emergency must be developed.

3.1.2 EIA on strategy, policy, law and plan should be given importance
The Songhua River Pollution Incident reminds people that strategy and
policies on social and economic development may greatly impact on the
environment. Further environmental legislation should not only give desir-
able attention to the national economy and a social development plan but
also put social and economic development strategy, policies and laws into
the EIA system promptly, constituting a complete EIA system,31 which
would include specic regulations on applicable targets, scope, assessment
bodies, review and liability and the like.32 Surely, the EIA system should not
only be reected in the Law of Environmental Impact Assessment, which
is currently under revision, but also reected in other relevant environmen-
tal legislations.

3.1.3 It is indispensable to improve the feasibility of environmental


legislation and pay more attention to law enforcement
On the one hand, environmental legislators should improve the feasibil-
ity of environmental legislation, making it adaptive to social and eco-
nomic development, revise those regulations that could not meet
practical needs and, meanwhile, pay attention to the extension of the
legal system technically. Regulations on rights, obligations and responsi-
bilities should be supportive and supplementary to each other so as to
form an integrated system. Each stage of an environment exploitation
activity should be clearly regulated so as to carry out the principle of
from the cradle to the grave management. On the other hand, more
emphasis should be put on law enforcement. In the Songhua River
Pollution Incident, problems in EIA of construction projects conducted
by interested bodies are self-evident. Some related acts have made regu-

31 Article 102(c) of the US National Environmental Policy Act of 1969 stipu-

lates that statigic EIA means investigation, estimation and assessment of the impact
to environment caused by stategic decisions like policies, legislations, long-term
plan etc.
32 See Wang Canfa (2004, pp. 1320).
304 The Songhua River pollution case

lations on production, storage, transportation and environmental pro-


tection of hazardous chemical materials. But why do incidents happen
again and again? By tracing back to the source, it is found that the illegal
operation of Benzhydrol Factory of Jilin Petrochemical Co Ltd is
undoubtedly an important reason. Accordingly, whether relevant
authorities did as the laws require is also crucial. Whoever makes the law
should make the law applicable to himself.33 Whether the administrative
bodies with administrative legislation power could perform their admin-
istrative duties in accordance with the law will, to a great extent, aect
the implementation of the law in the State. This should attract the legis-
lators adequate attention.

3.2 Establish and perfect important environmental legal system

From a legal perspective, lack of a systematic and eective environmental


legal system is the reason for various environmental pollution and
damages. Chinas current environmental legislation should mainly focus on
studying and establishing the following legal systems.

3.2.1 System for compulsory environmental liability insurance


Based on the experiences in foreign countries and Chinas practical situ-
ation, China should establish a compulsory environmental liability insur-
ance system targetting the industries of high level risk and severe pollution,
e.g. petroleum, chemical, printing and dyeing, mining, cement, papermak-
ing, leather, thermal and power generation, coal gas, nuclear fuel and treat-
ment of poisonous and hazardous waste etc. After negotiating with
the China Insurance Regulatory Commission, the State Environmental
Protection Administration (SEPA) of China can choose some insurance
companies with strong nancial capacity and wide experience to adopt
jointly accepted insurance. Such insurance companies could be given
favourable policy support, such as taxation policy. The Government could
establish an institute for assessing environmental pollution risk, consisting
of professionals in environmental protection, law and insurance etc, to
divide the enterprises into dierent risk levels. Drawing on experiences in
foreign countries combined with the practical situation in China, compul-
sory environmental liability insurance in China could include nuclear inci-
dent liability insurance, water pollution liability insurance, radiation
pollution insurance, hazardous chemical articles pollution insurance etc.
For limited compensation and compensation immunity, the insurer will

33 See Thomas Aquinas, translated by Ma Qingkui (1963, p. 123).


The perspective of environmental law 305

only pay the victims the amount of insurance fee as stated in the insurance
certicate, and the one causing damages, that is, the insured, will be respon-
sible for the loss surpassing the insured amount. If the insured person still
could not aord the compensation liability, the fund for environmental
damage compensation should be started. China can make reference to the
Sunset Clause34 of Western countries regarding the valid term of compen-
sation claim. In addition, regulations on exclusive liabilities should also be
developed.

3.2.2 Fund for environmental damage compensation


A special institute for fund management, set up by environmental protec-
tion authorities at county level and above, will be in charge of specic
aairs. The institute will be made up of professionals in environmental pro-
tection, law and technology etc. In situations where the polluter cannot be
identied, or the one responsible for the pollution is a majority, or the one
responsible has been identied but the victim cannot get compensation
through social insurance or other means, a fund for environmental damage
compensation can be applied. Objects for compensation include: (a) per-
sonality rights, including damage to human life, bodies, and health as a
result of air, water, and hazardous chemical substance pollution; (b) shery
damage as a result of water pollution; (c) forestry damage as a result of air
pollution; (d) agriculture damage as a result of soil pollution. The channel
of funding can be diversied, for instance compensation fund drew from
fee for pollutants discharging and ne; guarantee fund submitted by enter-
prises who pollute the environment; fund collected from issue of environ-
ment bond and environmental protection lottery; fund contributed by
social organization and individuals35 as well as government appropriations.
The fund for environmental damage compensation can only be used when
the victims cannot protect the lawful rights through other relief means.
When the compensation is made to the victim, the fund will demand com-
pensation from the one who caused the damages in the name of voluntary
service or through exercise of subrogation right. Initial proving responsi-
bility is applicable regarding the proof providing responsibility. The victim
only has to prove that the damage is caused by environmental tort, and the

34 See Lin Fanghui and Su Zupeng (2005, p. 5).


35 On 24 July 2005, the rst hotline in China for donations to a special fund for
environmental protection opened. The hotline is a platform for publicising envir-
onmental rights knowledge, providing legal assistance and accumulating funds
for environmental protection. See the rst hotline in China for donations to a
special fund for environmental protection, available at http://www.china.org.cn/
chinese/kuaixun/923313.htm.
306 The Songhua River pollution case

one responsible for the tort cannot be identied, or even though the one
responsible for the tort can be identied, his legal right cannot be protected
through other relief means. In the situations above, the victim can submit
the evidence to the fund management institute for review.

3.2.3 Environmental counter-emergency system


On the basis of existing regulations on environmental counter-emergency
in China and the experience of foreign countries, the environmental
counter-emergency system should include four aspects as follows. (a)
Establishing and perfecting the counter-emergency plan mechanism. It
should be clear and specic in the mechanism with regard to the body who
developed the counter-emergency plan, content and record of the plan etc.
(b) Identifying the polluters obligation on responding to the emergency.
This kind of obligation, as the core of the counter-emergency system,
includes the obligations on adopting counter-emergency measures, inform-
ing, reporting and accepting the investigation. The polluter, in practice,
should undertake the four obligations at the same time. In addition, what
needs to be noticed is that the polluter must take the counter-emergency
measures as the law requires even though the measures are not included in
the counter-emergency plan. (c) Clarifying the duties of competent author-
ities concerning the counter-emergency management, which should include
the duties of reporting, informing, investigation, adoption of counter-
emergency measures and monitoring. (d) Liability. There are mainly two
types of liability in the environmental counter-emergency system. One is
related to counter-emergency plan mechanism. Should the counter-
emergency plan not be recorded, the polluter could not start up relevant
activities. The other one concerns environmental incidents, which can be
further divided into responsibility of polluter and that of competent
authorities according to dierent responsible bodies. Specic liability
should be set up with respect to each obligation. Fortunately, the Incident
of Songhua River Pollution has gained the attention of government at all
levels of the counter-emergency treatment system. SEPA not only informed
Russia36 but also the relevant international organizations37 and communi-
ties38 of the Incidents development. Moreover, the Incident also encour-
aged provinces and cities like Jilin and Liaoning to perfect environmental
counter-emergency plans.39

36 See Li Zhongfa and Songyan (2005).


37 See Zhao Shengyu (2005).
38 Latest report on Songhua River Pollution Incident, SEPA (2006).
39 See Chen Wei (2005a); Chen Wei (2005b).
The perspective of environmental law 307

3.2.4 System for the settlement of administrative transregional


environmental disputes
The environmental legislation should further perfect laws and regulations
on the system for administrative transregional environmental disputes set-
tlement in the following aspects. (a) Explaining the legal concept of envir-
onmental pollution from that of environmental pollution incident.
Environmental pollution cannot just be dened on the basis of economic
loss, since environmental pollution may cause not only economic loss but
also injuries to human beings and damage to the environment. The
identication of economic loss takes a long time, which will aect a prompt
settlement. (b) Supplementing and specifying the legal procedure of admin-
istrative transregional environmental disputes settlement. Besides the coor-
dination among dierent government organs regulated clearly in the
current legislation, the administrative transregional environmental dis-
putes settlement can introduce such legal procedures as mediation, admin-
istrative adjudication, arbitration, litigation and the like. The time limit for
resolving the dispute should also be specied. The administrative transre-
gional environmental disputes, especially administrative transregional
water pollution disputes, can be divided into two categories of disputes: (i)
the dispute is caused because the water quality of administrative transre-
gional rivers cannot meet the required standards for a long time, resulting
in issues of safe drinking water, sanitation and the increase of treatment
costs in the lower reaches; and (ii) the dispute is brought about by the
damage in the lower reaches as a result of a pollution incident by accident
or negligence. Dierent disputes should adopt dierent legal procedures.
(c) Establishing special institutes for environmental damage assessment,
assessment rules and the legal eect of the assessment result. The strong
speciality and technical characteristics of cause, nature, scope of impact
and seriousness of environmental damage need special assessment insti-
tutes to provide relevant services for the concerned parties. Environmental
protection departments under the State Council should develop an envi-
ronmental damage assessment system, identify the qualication of assess-
ment institutes and issue relevant assessment rules. The assessment result
has legal eect by the qualied institutes in accordance with the legal
assessment rules and is the main basis to identify the environmental
damage. (d) Setting up a specic organization for coordinating the admin-
istrative transregional environmental disputes. The organization, under the
leadership of governments, may be composed of departments of environ-
mental protection, territory, water conservancy, shery, agriculture,
forestry, public security etc. In the administrative transregional environ-
mental disputes caused by water pollution incidents, the river valley man-
agement department should play its critical role in this regard.
308 The Songhua River pollution case

3.2.5 System for the settlement of transboundary environmental disputes


First, establish a statistical system of environmental pollution damage. On
the one hand, conduct a survey, collect statistics and assess the economic
loss, injury to human beings and ecological damage abroad. The assess-
ment result will be the legal basis for China to negotiate with other coun-
tries regarding the compensation of environmental pollution. On the other
hand, assess the economic loss, injury to human beings and ecological
damage to China caused by the pollution occurring in other countries. The
assessment result will be the legal basis for identifying the compensation of
international environmental pollution. Secondly, perfect the information
exchange system of international environmental pollution. This system is
the premise for the polluted countries to adopt pollution prevention mea-
sures, identify compensation, and establish mutual condence between
countries. Barriers generally exist in information exchange among coun-
tries regarding international waterways pollution. These barriers always
distort the facts. Therefore, it is necessary to establish information exchange
platforms to promote the information exchange, and set up a decision-
making support system to reduce the uncertainty of decisions.40 Thirdly,
establish the coordination system for international environmental damage
compensation. Coordination and negotiation are the most preferred means
to deal with transboundary environmental disputes. Procedures to cope
with transboundary environmental disputes are sophisticated, and the dis-
putes usually involve a strong interest by concerned countries. Thus the set-
tlement of the disputes needs professional technologies. The charact